Peter Nicholas Charaneka v Australian Islamic College of Sydney

[2016] FWC 3572

[2016] FWC 3572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Nicholas Charaneka
v
Australian Islamic College of Sydney
(U2015/6380)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 3 JUNE 2016

Application for relief from unfair dismissal.

Introduction

[1] On 3 July 2015 Mr Peter Charaneka (the Applicant) lodged with the Fair Work Commission (the Commission), pursuant to s.394 of the Fair Work Act 2009 (the Act) an application for a remedy for unfair dismissal against his former employer Australian Islamic College of Sydney (the Respondent).

[2] The Applicant commenced employment with the Respondent on 2 June 2014. The Applicant says that he was notified of his dismissal on 29 June 2015 and the dismissal took effect on that day.

[3] The Applicant was a teacher at the Respondent’s school in Sydney’s western suburbs.

[4] The Applicant says he was dismissed on the basis of false accusations and without due process. He sought compensation.

[5] The Respondent, in its F3 form denied that the Applicant was dismissed, because the Applicant is the subject of an interim bar under the Child Protection (Working With Children) Act (NSW) 2012, the Respondent is precluded from continuing to employ him. In any event, the Respondent asserts that the Applicant’s employment was terminated because of a breach of contractual obligations and because he was potentially a risk to the safety of children under his care.

Commission Proceedings

[6] The matter was conciliated on 10 August 2015 but was not resolved.

[7] On 31 July 2015 the Respondent lodged an F4 application seeking to have the matter dismissed on the grounds that it had no reasonable prospect of success. This matter was listed a number of times but did not proceed. It appears that settlement discussions were taking place that were not, ultimately, successful. Requests for adjournment were also made by the Applicant.

[8] The matter was then allocated to me. A telephone programming mention took place on 29 October 2015.

[9] The hearing took place on 17 December 2015.

[10] The Applicant was represented by his father Mr Alex Charaneka. The Respondent was represented by Mr Lyndon Burke, solicitor. Mr Burke was granted permission to appear pursuant to s.596.

[11] Unfortunately, the matter could not be completed in the day allocated.

[12] The Applicant’s representative was then not available for some time.

[13] The matter was concluded on 17 March 2016 after a listing for 22 February could not proceed because of the Applicants unavailability.

[14] The Applicant relied on a written submission and witness statement.

[15] The Respondent relied on written submissions and two witness statements of Dr Imam Ali, the Principal of the Respondent.

Protection from Unfair Dismissal

[16] An order for reinstatement or compensation may only be issued where I am satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[17] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[18] The Applicant was covered by an enterprise agreement, Independent Schools NSW (Teachers) Multi-Enterprise Agreement 2015 – 2017 [AE412454]. In addition his salary at $67,085 per annum was below the high income threshold. It was conceded, therefore, that he was a person protected from unfair dismissal in accordance with s.382.

[19] Section 396 provides that certain matters must be determined by the Commission before proceeding to deal with the merits of a matter. It provides:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[20] None of these matters were at issue in this case.

Was the dismissal unfair?

[21] A dismissal is unfair if I am satisfied, on the evidence before me, that all of 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.”

[22] No issue was raised pursuant to s.385(c) or (d).

[23] As I have noted the Respondent made a submission that there was no dismissal because the legislation required that the Applicant no longer be employed. I will deal with this issue separately below.

Harsh, Unjust or Unreasonable

[24] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“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.

Applicant’s case

[25] The Applicant says that he was suspended by Dr Ali on 24 March 2-15 following a letter from the Ombudsman. Apparently there had been a letter from the Children’s Guardian relating to the Applicant’s previous employment with Matrix Education (Matrix).

[26] The Respondent appointed its solicitor, Mr Burke to investigate the allegations which related to inappropriate contact with students whilst the Applicant was employed by Matrix.

[27] Following a show-cause meeting on 4 June 2015, the Applicant was terminated by a letter dated 29 June 2015. The letter said the allegations had been substantiated and there had been a breach of the Applicant’s employment contract. The Respondent said that its reputation was at risk and that it needed to protect its students.

[28] The Applicant submits that the investigation was biased and relied on hearsay.

[29] On 20 July 2015, the Applicant says that he received a letter advising him that an interim bar on working with children had been place on him.

[30] The Applicant seeks monetary compensation.

Respondent’s Case

[31] The Respondent’s original response of “no dismissal” was based on the submission that it would be illegal to employ the Applicant because of the interim bar on the Applicant being employed in “child related work”. The Respondent conceded that this applied only from 21 July 2015, the date of the letter from the Office of Children’s Guardian.

[32] Therefore, the unfairness of the dismissal, on 29 June, needs to be considered in accordance with the Act.

[33] The Child Protection Allegation reports were attached to the witness statements of Dr Ali. The content of the 4 June show cause meeting is summarised in Dr Ali’s statement. It also refers to the Respondent’s various policies including a staff code of conduct.

[34] The Respondent says that neither the Applicant nor his representative appeared at the proposed second show-cause meeting scheduled for 24 June.

[35] The Respondent submits that it conducted a thorough and proper investigation of the allegation against the Applicant. The Applicant’s conduct represented a serious breach of the employment relationship and constituted a valid reason for dismissal. The conduct constituted a significant risk of harm to the Respondent’s students. The decision of the Office of Children’s Guardian supported the correctness of the Respondent’s action.

[36] The Respondent submits that the show-cause and investigation process was thorough and entirely appropriate.

[37] Dr Ali’s evidence was that it had acted because of advice on 10 March 2015 by the NSW Ombudsman regarding a child protection concern about the Applicant. The Respondent also received a report from the New South Wales Police concerning the Applicant’s conduct whilst employed by Matrix from November 2011 to August 2013. It is not necessary to outline the allegations. The Respondent understood that the Applicant had been terminated by Matrix.

[38] The Respondent was required to conduct a Child Protection Investigation and did so in accordance with NSW legislation. Mr Burke was appointed to do this.

[39] The Applicant was advised of the investigation on 24 March 2015 and suspended on paid leave. The Applicant was sent a “reportable findings” letter on 29 May. The report was provided to the Applicant and the NSW Ombudsman on 4 June 2014. The show-cause meeting took place on that day. A “final findings” letter was provided to the Applicant on 19 June 2015. The Applicant had been provided with a detailed show-cause letter on 2 June.

[40] The 4 June 2015 show-cause meeting was adjourned but a second did not take place. The Respondent says that the Applicant did not present himself on two occasions.

[41] A copy of the Office of the Children’s Guardian’s letter of 21 July 2015 was attached to Dr Ali’s statement.

Approach of the Commission

[42] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ 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.”

[43] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

Valid Reason - s.387(a)

[44] In Container Terminals Australia Limited v Toby [2000] Print S8434, 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’.

[45] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 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 ...”

[46] In Parmalat Food Products Pty Ltd v Wililo[2011] FWAFB 1166, 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.”

[47] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered under s.387:

“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” means that the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals where there is no “valid reason” for the dismissal.

[21] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that FWA considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).

[22] Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.
...
[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[35] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.
. . .

[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”

[48] I respectfully adopt this approach.

[49] The emotion in the hearing of this matter prolonged it but its determination turns on some quite narrow and clear issues. The Applicant denied the truth of the allegation against him in respect of his employment with Matrix. That is not an issue to be considered by me and I make no findings with respect to the truth or otherwise of those allegations.

[50] It was not denied that the allegations were brought to the attention of the Respondent by the Ombudsman and the Police. The Respondent was legally bound to investigate them. It was also part of its responsibility as a school to investigate them. Dr Ali’s evidence in chief and in cross-examination was full and unimpeachable (see Transcript PN1084 – 1099). His evidence was not challenged.

[51] It appears to me that the investigation by Mr Burke was thorough and fair. The Applicant was given procedural fairness during the investigation stage.

[52] The Respondent, in view of its legal responsibilities and duty of care to students was entitled to take these issues very seriously. Having been presented with the reports, following the investigation, the Respondent had a valid reason to dismiss the Applicant.

[53] The Respondent’s decision to dismiss, taken by Dr Ali and the Board, must be judged on the basis of the evidence at the time of dismissal. However, the subsequent interim bar on the Applicant, from the Office of Children’s Guardian, would have necessitated it anyway.

[54] Accordingly, I find that there was a valid reason for dismissal.

Notification of a valid reason – s.387(b)

[55] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 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.”

[56] There were a number of steps in the investigatory and disciplinary process, as follows:

● 24 March 2015 – the Applicant was advised of the allegations by Dr Ali.

● There was a preliminary findings letter to the Applicant on 29 May.

● Two reports were provided by Mr Burke dated 2 June and 18 June. The Applicant was interviewed during this process.

● The Applicant was given a show cause letter on 2 June.

● There was a show-cause meeting on 4 June which was adjourned at the request of the Applicant.

● There is a dispute about whether the Applicant did not show up to a subsequent meeting. In any event, I am satisfied that he was given that opportunity.

[57] Accordingly, I am satisfied that the Applicant was notified of the valid reason for termination before it occurred on 29 June.

Opportunity to respond s.387(c)

[58] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal way to ensure the employee relating to the conduct or capacity of the person. This criterion is to be applied in a common sense is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[59] It follows from the above series of events, that the Applicant had an opportunity to respond to the allegations.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[60] 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.

[61] The evidence was that the applicant did not request a support person for the 4 June show-cause meeting. However, it was adjourned at his request. The second show cause meeting was contested but I am satisfied that he was notified of one on 19 June and advised that it would be recovered to 24 June, at his request. The Applicant did not appear. Accordingly, I am satisfied that s.387(b) has not been infringed.

Warnings regarding unsatisfactory performance – s.387(e)

[62] This section is not relevant.

Impact of the size of the Respondent on procedures followed – s.387(f); Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[63] This section is not relevant..

Any other matter that the FWC considers relevant

[64] Section 387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.

[65] I have not taken account of any other matter.

[66] For these reasons I find that the dismissal was not harsh, unjust or unreasonable. Accordingly, I find that the dismissal was not unfair within the terms of s.385.

[67] The Application for unfair dismissal relief is therefore dismissed. An order [PR581252] accompanies this decision.

DEPUTY PRESIDENT

Appearances:

A. Charaneka for the Applicant;

L. Burke, solicitor for the Respondent.

Hearing details:

2015

Sydney:

October 29 (Telephone Mention);

December 17.

2016

Sydney:

March 17.

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<Price code A, PR581094>