Rasheed Onilogbo v Challenge Community Services
[2024] FWC 666
•14 MARCH 2024
| [2024] FWC 666 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rasheed Onilogbo
v
Challenge Community Services
(U2023/9832)
| COMMISSIONER MCKINNON | SYDNEY, 14 MARCH 2024 |
Application for an unfair dismissal remedy – whether dismissal harsh, unjust or unreasonable
Mr Rasheed Onilogbo was employed as a Disability Support Worker by Challenge Community Services (Challenge) from 11 January 2021 until 19 September 2023. His employment was terminated by Challenge with immediate effect on 19 September 2023 for unauthorised absence and failure to follow a lawful and reasonable direction, although an error in the letter of termination resulted in a replacement letter being issued the following day, 20 September 2023.
On 4 October 2023, Mr Onilogbo applied in time for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Mr Onilogbo is protected from unfair dismissal because he was employed for at least 6 months by Challenge; he was covered by a modern award in relation to his employment; and his annual rate of earnings was below the high income threshold.
As Challenge is not a small business employer, the dismissal could not have been consistent with the Small Business Fair Dismissal Code. The dismissal was not a case of genuine redundancy.
The only question is whether I am satisfied that the dismissal was harsh, unjust or unreasonable. For the reasons that follow, I am not satisfied that the dismissal was either harsh, unjust or unreasonable. In the result, Mr Onilogbo has not been unfairly dismissed.
The facts
From June 2023 until 20 September 2023, Mr Onilogbo worked for Challenge in its Dubbo facility known as ‘Bayou House’ on Friday, Saturday, and Sunday. Although he was employed to work 40 hours per fortnight plus reasonable additional hours, his regular pattern of work at the time of dismissal involved working 45 hours per fortnight, on Friday night (10.00pm to 6.00am), Saturday evening (2.00pm to 10.00pm) and Sunday evening (alternating weekly between 2.00pm to 7.00pm and 2.00pm to 10.00pm).
On Wednesday 16 August 2023, Mr Onilogbo discovered errors in his roster in relation to a concurrent Friday night shift and the absence of Sunday shifts. He sent an email to Challenge’s Operations Manager for Dubbo, Mr Elias Sarkar, to say:
“Hello Elias,
I am bringing up an error in my roaster [sic] to your attention.
My roaster [sic] has always been Friday night, Saturday afternoon and Sunday afternoon.
The screenshot here shows differently and as per WHS it’s not okay to be doing Friday afternoon and going straight into night shift continuously.
This is why my roaster [sic] seem to have been distorted again, we have been here before, and my roaster [sic] has been based on what I have committed to with Challenge.
As earlier communicated, kindly help to investigate this for correction which is the absence of my Sunday shift from my roaster [sic].
Thank you.”
Mr Sarkar responded by correcting Mr Onilogbo’s Friday shifts in the roster. He did not make any change in relation to the Sunday shifts.
On Friday 18 August 2023, Mr Onilogbo wrote again to Mr Sarkar:
“Hello Elias,
Thanks for the correction to my Friday shift. Its [sic] now showing but still not reflecting my other shifts.
I will still need your confirmation as regards my contracted hours shown below which is yet to be corrected on my Emp-live.”
[image omitted]
It shows here that my contracted hours is not yet fulfilled as my shift has been removed without my knowledge.
I have waited for you based on our discussion that the error will be corrected, as per my email below. In absence of any communication from your [sic] about the correction.
I would go ahead to attend my shift as normal which is my usual hours and contracted shifts in absence of any communication.
This is because if I don’t I may not be paid my full wages, which is what I have been contacted and which I have to be paid fortnightly.
Alternatively, You can confirm to me not to attend my shift and I will not proceed to attend my shift, that I will still be paid for my contracted hours.
Kindly help me to look into this urgently.
Thank you.”
The screenshot image in the email showed no Sunday shifts on the weekends of 20 and 27 August 2023.
Shortly after receiving the email, Mr Sarkar revised the roster again and responded to Mr Onilogbo to say that the issue had been fixed. The issue had not been fixed. Mr Onilogbo had instead been rostered for two Sunday shifts from 12.00pm to 4.00pm, ending 3 and 6 hours respectively earlier than usual. Although the discrepancy is unexplained, I infer that its purpose was to bring Mr Onilogbo’s rostered hours in line with his contracted 40 hours per fortnight. The change had not been discussed with Mr Onilogbo in advance.
Mr Onilogbo wrote again to Mr Sarkar:
“Hello Elias,
It looks like there is still an error in my hours as shown below.
[image omitted]
My regular hours on Sunday is 2pm to 10pm which is against what you have inputted.
Kindly restore my hours which is what I have been doing in Bayou house as per my availability.
Thank you.”
On Saturday 19 August 2023, Mr Sarkar attended Bayou House on his day off to address a recent reportable incident and also to speak with Mr Onilogbo about his roster. They met in the office of Bayou House, not far from where a client prone to audiogenic seizures was seated. Challenge states that audiogenic seizures can be brought on by stressful situations such as exposure to loud voices or aggression and can be life-threatening.
Mr Sarkar began the meeting by asking Mr Onilogbo about his knowledge of the Social, Community, Home Care and Disability Services Industry Award 2010 and about his approved availability in writing for the hours or shifts that Mr Onilogbo regularly worked. He offered to explain how a change to availability worked and invited Mr Onilogbo to review his emails or look on the office computer to find the approval so that the roster changes he had requested could be confirmed. Mr Onilogbo was unable to find what he was being asked for and became escalated. Although he denies raising his voice, I accept the evidence of Mr Sarkar that he did. That evidence is consistent with what followed, including the making of a notifiable incident report about the matter. The following exchange occurred, in words to the effect:
Mr Sarkar:“It’s a reasonable request to calm down. Please calm down, lower your voice and stop yelling, clients are here. We will not go anywhere if you argue and raise your voice. I am here to help you. Unless you show me the approval, you will work from 2.00pm to 7.00pm tomorrow. This is because last week you worked from 2.00pm to 10.00pm. This is as per your usual roster.”
Mr Onilogbo: “This is my voice. This is how I talk. I will be doing 2.00pm to 10.00pm tomorrow.”
Mr Sarkar:“As per your pattern of shift, you are meant to do 2.00pm -7.00pm. If you stay past 7.00pm tomorrow, this will be considered as trespassing. Also please provide evidence of your approved new availability in the next 48 hours.”
During this conversation, Mr Sarkar saw the client who was prone to audiogenic seizures being assisted to move outside by two other disability support workers.
On Sunday 20 August 2023, Mr Sarkar called Bayou House at 8.28pm. Mr Onilogbo answered the call. The following conversation occurred, in words to the effect:
Mr Sarkar: “Your shift finished at 7.00pm, you are directed to leave the premises. If you don’t leave Bayou House, this is trespassing.”
Mr Onilogbo: “I will not leave. I will stay until 10.00pm.”
Mr Sarkar:“I will call the police.”
Mr Onilogbo: “Call, I’m here.”
Mr Onilogbo did not leave Bayou House as directed. He remained until 10.00pm and then left. Challenge subsequently made a notifiable incident report to the National Disability Insurance Agency about the client’s exposure to the exchange between Mr Onilogbo and Mr Sarkar the day before.
On Monday 21 August 2023, Mr Onilogbo wrote to Mr Jim Herbert, Regional Manager. He alleged workplace intimidation and bullying by Mr Sarkar, both on the weekend of 19/20 August 2023 in connection with “roster disruption” and on other “several occasions” without providing further detail. Referring to the meeting with Mr Sarkar two days earlier, Mr Onilogbo wrote:
“At about 14.35pm on Saturday Elias Sarkar Operations Manager came to the house while I was supporting my clients, he excused me off my duty of care to the office and then started by asking me my knowledge about SCHADS Award and said all sort of degrading words to me.”
Mr Onilogbo described his regular fortnightly roster to Mr Herbert. He also forwarded for Mr Herbert’s review the email trail with Mr Sarkar about the errors in his roster and “evidence of his bullying” including the threat to call the police to remove him from the work site. He stated that Mr Sarkar “did everything to intimidate me”.
On Wednesday 23 August 2023, Mr Onilogbo was suspended from duty on full pay pending an investigation into allegations concerning his conduct and performance, which “may meet the definition of client neglect and serious misconduct in accordance with Challenge Community Services Policies and Procedures.”
On Tuesday 29 August 2023, Challenge wrote to Mr Onilogbo advising of a “workplace response meeting” on Thursday 31 August 2023 at 11.30am. The letter was sent by Ms Anne Hutchinson, HR Business Partner, and set out 7 separate allegations in relation to Mr Onilogbo’s conduct in the workplace.
On Wednesday 30 August 2023, Mr Onilogbo wrote to Ms Hutchinson. The email said:
“Hello Anne,
Thanks for your email.
I have reached out to my union in regards to the panel invitation sent to provide me with a support person.
I will keep you posted once I hear back from the union.”
On the morning of Thursday 31 August 2023, Ms Hutchinson called and left a voicemail message for Mr Onilogbo asking if he had been assigned a union representative that could be his support person. She also sent him an email which is not in evidence but is referred to in her later email of the same day. Mr Onilogbo replied at 10.39am, saying:
“Hello Anne,
I reached out to you as per my email below. Kindly I check your email.
Thank you.”
Ms Hutchinson replied to Mr Onilogbo:
“Dear Rasheed
Please do not direct me. I did read your email and you have not confirmed whether you will or will not attend the meeting today. Hence my email to you.
Please advise what your Support person is intending to do.”
Mr Onilogbo did not attend the scheduled meeting at 11.30am on 31 August 2023.
At 2.39pm on 31 August 2023, Mr Onilogbo wrote to Ms Hutchinson, copying in Mr Mark Jongebloed from the Australian Services Union among others:
“Hi Anne,
I’m currently experiencing mental stress as a result of the conspired accusations level against me and being stood down from my job. I will further discuss with my union support person in regards to this and I will keep you posted.
Thank you,”
On Friday 1 September 2023 at 10.03am, Mr Jongebloed wrote to Ms Hutchinson, copying in Mr Onilogbo among others:
“Dear Anne,
I hope this email finds you well.
We will support our member at the intended meeting. I had understood based on my discussion with Rasheed that he was waiting for options in terms of alternate dates – I do apologise if there has been some confusion in that regard, as it appears that is the case.
Without wishing to direct you Anne, may I suggest that is the preferable approach, as based on the correspondence it does appear that there are a number of Challenge representatives intending to attend the meeting and that is likely to require some coordination in terms of timing – perhaps if you conferred in relation to options where you all have availability, I could then consider those options in terms of my own availability?
In addition, it may be in the interests of the parties for us to have a brief discussion with you in relation to an issue we propose to raise on behalf of our member.”
Mr Onilogbo responded to the email from Mr Jongebloed at 11.58pm that day, copying in Ms Hutchinson among others. He wrote:
“Hi Mark,
Thank you for your email, with all due respect, I will appreciate you seek for my consent before any further communication with Challenge Community Service on this issue.
I never for once mentioned to you about seeking an alternate date to attend the panel meeting during our phone conversation as claimed in your email to Anne.
Considering the state of my current mental health that was triggered by the conspired accusations, may I say, that I will not be able to attend the panel meeting for now. I will contact EAP for support on my mental health, and I will communicate further with Challenge Community Services.
Thank you.”
On Monday 4 September 2023, Ms Hutchinson wrote to Mr Jongebloed:
“Dear Mark
Thank you for your email and assistance in this matter with Rasheed. I have been waiting for Rasheed to provide a suitable time for you to meet with us, but it now appears he does not want to do so.
There is nothing conspired as Rasheed’s states, and unless he is prepared to meet to respond to the serious concerns, we will need to form another strategy, including Rasheed now being placed on personal leave as he allegedly is unable to return to work.
Happy to discuss the matter further to assist Rasheed in this matter.”
Shortly after this email, Ms Hutchinson wrote to Mr Onilogbo, copying in Mr Jongebloed among others:
“Dear Rasheed,
Thank you for your email where you have indicated you are unwell.
Please provide a medical certificate to verify your inability to attend work. When on paid stand down it is a requirement you are able to attend work at any given time. Upon receipt of your medical certification you will be placed on personal leave.
We are seeking to clarify a time and date to meet with you to resolve the concerns raised.”
On Tuesday 5 September 2023, Ms Hutchinson wrote again to Mr Onilogbo:
“Dear Rasheed
As requested, we require you to provide a Medical Certificate to advise of your leave. As you have not done so, you are now on unauthorised leave and will not be paid for your absence from work.
I request you do so by close of business on Thursday 7 September 2023.”
On Wednesday 6 September 2023, Mr Onilogbo wrote to Ms Hutchinson:
“Hi Anne,
My expectation was for you to check on me to see how I’m going with my mental state rather than coercing me to attend a meeting while I’m mentally stressed as a result of the conspired accusation, racial discrimination, racial profiling and unjust stood down.
I brought forward to your attentions my concern of a questionable act of workplace bullying by Elias Sarkar Operations Manager which is yet to be addressed and in-response to that was a [sic] false allegations and unjust stood down.
I’m traumatized by such unfair act which I strongly believe does not represent the value of Challenge Community Services.
Please note, I have financial obligations to my family and I did not at anytime put in request for personal or annual leave but was unjustly stood down.
FYI, I have advised the Union that I no longer want Mark Jongebloed to be my support person on this issue and have requested they allocate another support person to me.
I will communicate further once I have spoken with the new support person from the Union.
Thank you,”
On Thursday 7 September 2023, Ms Hutchinson wrote to Mr Onilogbo:
“Dear Rasheed,
Thank you for your email.
I did show concern for your welfare and “check on you” when I requested you attend a Doctor and provide a medical certificate to ensure you are seeking medical assistance and care.
You stated you were unable to attend a meeting, and therefore also unable to work. A requirement of being on paid stand down is that you are available for work at any time when requested, and as you are not, you are no longer on paid stand down.
I look forward to hearing from you to advise how we can progress and finalise this matter with your newly appointed ASU Representative.
Many thanks”
On Friday 8 September 2023, Mr Onilogbo wrote to Ms Hutchinson:
“Hi Anne,
Thanks for your email and for advising that you did check on me by requesting “I attend a Doctor and provide a medical certificate” so you can have a reason to convert “A Paid Stand Down” which was clearly communicated in a pdf format attachment into A Sick Leave if I provide a sick certificate when in actual fact I haven’t applied for one or intentionally take time off work, but Unjustly Stood Down.
You also state that I stated I’m unable to attend a meeting, and therefore also unable to work.
May I request you go through my correspondence with you again and point out where I have stated that I’m unable to attend work to validate your claim?
Further more, you stated that “A requirement of being on paid stand down is that you are available for work at any time when requested, and as you are not, you are no longer on paid stand down”
May I also request you go through my correspondence with you again and point out where I have stated that I’m not available for work at any given time when requested based on my availability/roster to validate your claim.
I strongly believed you understand that I have financial obligations to my family and that’s why I took up this job to meet that [sic] obligations.
I will communicate further on the new support person allocated by the union.
Thank you,”
On Monday 11 September 2023, Ms Hutchinson sent a letter to Mr Onilogbo by email. The letter said:
“Dear Rasheed
On 23 August 2023 you were placed on paid stand down due to a number of serious concerns which had come to our attention regarding your conduct, and pending your attendance at a workplace meeting to be held on 31 August 2023. You did not attend this meeting and advised you were waiting for another Union Representative to support you. It has now been almost two weeks since we requested you attend the meeting and you still have not provided a suitable date and time to meet. Please note your support person does not need to be a Union representative. Anyone can act in this capacity if not employed by Challenge Community Services.
Further, on 31 August 2023 you advised you were stressed. Challenge Community Services under duty of care to you and our clients, needs to ensure you are fit for duty and on 4 September 2023 you were requested to provide a medical certificate by 8 September 2023 to verify you are fit for work. As you are aware, you need to be fit for duty to be on paid stand down, which was also explained to you. You also were again requested to provide a time and date to meet.
You did not provide the medical evidence, and as advised in our email of 4 September 2023 you were then placed on unauthorised and unapproved leave from 8 September 2023. You are now absent without evidence to justify this.
If you do not provide medical certification by 5.00pm Wednesday 13 September 2023 and a date for the workplace meeting, we may move to termination of your employment for unauthorised absence.
We understand these situations can be difficult and would encourage you to contact our EAP service, if you feel the need:
…”
On Tuesday 12 September 2023, Mr Onilogbo replied to Ms Hutchinson, copying Dahn Zayit from the Australian Services Union among others:
“Hi Anne,
On 23rd August 2023, I was conspired against and unjustly stood down from my job after I made a former complain [sic] about a workplace bullying perpetrated by Elias Sarkar Operational Manager. This act brought me so much stress and anxiety which I still nurture till date.
There’s no way I can attend your meeting on 31 August 2023 when I’m already stressed out and all I could do was to reach out to the Union to provide me with a support person which happens to be Mark Jongebloed and I also reached out to EAP afterwards.
I decided to contact the Union for a substitution after your correspondence with Mark on 4th September 2023 where you stated “We will need another strategy, including Rasheed now being placed on personal leave as he allegedly is unable to return to work” which you have not provided an [sic] evidence to validate your claim.
I understand, the power to Stand down/Recall back to Work lies within your jurisdiction but must be communicate in a professional standard.
Furthermore, a threat to terminate my employment with Challenge Community Services while unjustly being placed on “A Paid Stand Down” would be a Jurisdictional Error and which I believe does not represent Challenge Community Services Value.
I must also state again that I have financial obligations to my family and that’s why I took up this job to meet that [sic] obligations.
I will communicate further once I have spoken with the newly appointed support person from the Union.”
On Wednesday 13 September 2023, Mr Herbert responded to Mr Onilogbo’s complaint about Mr Sarkar of 21 August 2023. He explained that he had discussed the issue at length with Mr Sarkar and Ms Hutchinson and reviewed Mr Onilogbo’s correspondence and internal rostering records. He expressed the opinion that Mr Sarkar had taken reasonable management action in relation to Mr Onilogbo, having regard to: his responsibility for rostering, Mr Onilogbo’s failure to provide evidence of his approved availability for the regular roster patten, Challenge’s obligations to consult about changes to rosters and give notice, its attempts to remedy errors in the roster pattern by Mr Sarkar and the rostering records which showed a different regular Sunday shift to that claimed by Mr Onilogbo. He set out his views in relation to the issue with Mr Onilogbo staying longer than his rostered shift and the threat to call the police. He advised that he considered the matter closed absent any further detail or evidence from Mr Onilogbo.
On Thursday 14 September 2023, Ms Hutchison sent a formal “Show Cause” letter to Mr Onilogbo by email. The letter advised Mr Onilogbo that unless he provided a medical certificate to certify he was fit for duty, and also provided a date and time for a workplace meeting to discuss some serious concerns in regard to his conduct by 9.00am the following day, Challenge would proceed to terminate his employment due to unauthorised absence, failure to follow a lawful and reasonable direction and failure to justify absence. The letter stated:
“To be absolutely clear, if you are not able to attend work through illness, you need to provide a Doctor’s Certificate.
If you are fit for work you are expected to attend a workplace meeting. It is an [sic] unacceptable for us to wait for over two weeks for you to still not provide a date and time to meet with us to discuss the serious concerns we have raised.”
At 1.25pm on 14 September 2023, Mr Onilogbo responded to the letter from Ms Hutchinson by email. He did not provide either a medical certificate or any indication of when he could or would meet with Challenge. He wrote:
“Hello Anne,
You have continued to use the power conferred to you to threaten to terminate my employment with Challenge Community Services without any established fact.
At no time did I state in our correspondence that I’m not able to work and if you think otherwise, please provide an [sic] evidence from our correspondence to validate your claim.
On 23 August 2023, you officially used the power conferred to you to unjustly placed [sic] me on a “A Paid Stand Down” but failed to use the same power conferred to you to officially Call Me Back to Work rather than coercing me to attend a Doctor and provide a medical certificate so you can have a reason to convert “A Paid Stand Down” which was officially and clearly communicated in a pdf format attachment into A Sick Leave.
Furthermore, a threat to terminate my employment with Challenge Community Services while unjustly being placed on “A Paid Stand Down” would be a “Jurisdictional Error” and which i believe does not represent Challenge Community Services Value.
For my safety, it’s important I do not return to work while officially being placed on “A Paid Stand Down” without being Officially Called Back to Work.
Thank you”
On 18 September 2023, Mr Onilogbo responded to the email from Mr Herbert of 13 September 2023. He took issue with the conclusions reached by Mr Herbert and said that he had provided “all evidence you have asked for”, referring to his earlier correspondence. Then he wrote:
“However, if the intention was/is to restrict me to my 40hours Contract, there should be a former communication around it so I can advise which of my rostered days should be amended to accommodate the intended purpose. In this instance, I’m happy to amend my Saturday start and finish time to 4pm to 10pm against the 2pm – 10pm and keep my regular Sunday shift to 2pm – 10pm.”
Mr Herbert acknowledged the email from Mr Onilogbo on 18 September 2023 without further commentary.
On 19 September 2023, Mr Onilogbo was dismissed. The letter of termination advised that his failure to respond to Challenge’s reasonable requests to provide a medical certificate and/or a date and time for a workplace meeting was considered a breach of the Challenge Community Services Code of Conduct and the Challenge Community Services Values. An error in the letter in relation to payment in lieu of notice (advising an amount of 1 weeks wages, instead of the required 2) resulted in the letter being reissued on 20 September 2023 to correct the notice entitlement. Also on 20 September 2023, Mr Onilogbo was paid his outstanding leave entitlements and 2 weeks’ wages in lieu of notice.
Was the dismissal harsh, unjust or unreasonable?
Whether a dismissal was harsh, unjust or unreasonable depends on an assessment of all the relevant facts and circumstances, including those set out in section 387 of the Act. Those are considered in turn.
Was there a valid reason for the dismissal related to capacity or conduct, and was it notified to Mr Onilogbo?
Like all employees, Mr Onilogbo had a duty to cooperate with his employer and to follow its reasonable and lawful instructions. He did not cooperate with Challenge in relation to his rostered hours of work on 20 August 2023, or in relation to the allegations it made against him on 29 August 2023, or in relation to his absence from work after 31 August 2023.
On 20 August 2023, Challenge gave two reasonable and lawful directions to Mr Onilogbo. They were both the same. They required him to finish his shift, and leave the workplace, at 7.00pm that evening. The directions were reasonable in circumstances where Mr Onilogbo’s regular shift pattern included a 7.00pm Sunday finish. The directions were lawful in that Challenge was entitled to require Mr Onilogbo to leave its premises at the end of his rostered shift. The first direction was given in writing by Mr Sarkar. The second direction was given over the phone when Mr Sarkar called to discover that the first direction had not been followed. Mr Onilogbo openly defied the instructions. This was despite Mr Sarkar’s overreaction (in circumstances where the Sunday roster was in dispute) in saying that he would call the police and have him removed from site.
On 29 August 2023, Challenge gave Mr Onilogbo a reasonable and lawful direction to attend a workplace response meeting on 31 August 2023. Mr Onilogbo did not attend the meeting as required and did not explain his absence in advance. Although he had advised that he was contacting the Union for support and would keep Ms Hutchinson “posted”, he did not do so. Instead, he spoke with Mr Jongebloed of the Union, who contacted Challenge on his behalf on 1 September 2023. Within two hours, Mr Jongebloed was openly chastised by Mr Onilogbo, who denied having discussed alternative dates for a meeting with the Union and declared he would not be able to attend the workplace response meeting “for now”. Again, he advised Ms Hutchinson that he would “communicate further”. Similar statements to the effect that Mr Onilogbo would communicate further with Challenge in relation to cooperating with its requests were made on 6, 8 and 12 September 2023 but nothing came of them.
After 31 August 2023, Mr Onilogbo did not cooperate with Challenge in relation to his absence from work due to experiencing “mental stress”. On 1 September 2023, Mr Onilogbo drew the link between his mental health and his inability to meet with Challenge. It was reasonable and lawful in those circumstances for Challenge to require Mr Onilogbo to provide a medical certificate covering his absence from work. Actions of this kind, and related steps taken by the Union to support Mr Onilogbo to comply with the request were not coercion. Challenge directed Mr Onilogbo to provide a medical certificate on 4 September 2023 and explained its reasons for the request and its decision to bring his period of paid stand down to an end. It repeated the direction to provide a medical certificate for his absence on 5, 11 and 14 September 2023. Mr Onilogbo did not provide evidence to corroborate his absence from work after 31 August 2023, either in the form of a medical certificate or otherwise.
It appears that Mr Onilogbo misunderstood his ongoing duty to Challenge while absent from work on paid stand down and assumed that the stand down period would remain in place until he was “called back” to normal duties. Certainly, he does not appear to have appreciated that attendance at the workplace response meeting was a form of work and that if he was able to attend the meeting, Challenge was entitled to require it. When Mr Onilogbo said he was unable to attend the workplace meeting, he was advising Challenge of his inability for work. Challenge responded by explaining its position in this regard, including why it required medical evidence to support his absence from work. Mr Onilogbo chose not to accept the explanation.
On 11 September 2023, Mr Onilogbo was warned that he faced dismissal unless a medical certificate was provided together with information about his availability for a meeting with Challenge. Although Mr Onilogbo saw it as a threat, it was a warning as well as a necessary step to ensure that Mr Onilogbo understood the seriousness of his position. It was not a “jurisdictional error”.
On 14 September 2023, Challenge asked Mr Onilogbo to show cause why he should not be dismissed, again with the option of providing a medical certificate and a time and date for a meeting by the following day. Mr Onilogbo did not accede to either request. Five days later, his employment was terminated on the basis that had been foreshadowed.
In the circumstances, I am satisfied that Mr Onilogbo’s repeated failure to follow Challenge’s reasonable and lawful directions was a valid reason for dismissal.
The valid reason for dismissal was notified to Mr Onilogbo in the show cause letter of 14 September 2023. The same reason was confirmed in the termination letters of 19 and 20 September 2023.
Was there an opportunity to respond to any capacity or conduct related reason?
Mr Onilogbo had repeated opportunities to respond to Challenge’s concern that he was not following its reasonable and lawful directions. Requests for medical evidence and/or his availability for a meeting were made by Challenge, without success, on 4, 5, 11 and 14 September 2023.
Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?
There was no unreasonable refusal to allow Mr Onilogbo to have a support person to assist in discussions about the dismissal.
Was Mr Onilogbo warned about relevant unsatisfactory performance?
To the extent that Challenge had concerns in relation to Mr Onilogbo’s employment, they were about his conduct, rather than about whether his performance was unsatisfactory.
Degree to which the size of the employer’s business and any absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal
Challenge is a not-for-profit business of considerable size, operating across two states of Australia and employing more than 1,000 employees. It has access to dedicated human resources expertise to assist with procedures followed in connection with termination of employment.
Other relevant matters
The origins of this dispute lie in roster changes, the first of which was to correct an error and the remainder about aligning Mr Onilogbo’s roster with his contracted hours of 40 per fortnight. Although there was an obvious discrepancy between his contracted hours and regular pattern of work, Challenge’s initial approach to resolving the discrepancy lacked consultation and cooperation. It was likely to provoke a reaction from Mr Onilogbo, and it did. It was reasonable, in the circumstances, for Mr Onilogbo to express his frustration with the roster changes made unilaterally before the matter had been discussed with him because they were poorly executed. I do not, however, find any basis to conclude that the actions of Challenge in this regard were racially motivated, or that they involved bullying behaviour. There is no evidence that Mr Sarkar used degrading words toward Mr Onilogbo.
Although it was reasonable for Mr Onilogbo to express dissatisfaction about the roster changes and their implementation, his subsequent conduct was unreasonable. Challenge had the right to require Mr Onilogbo to leave the workplace at the end of his rostered shift, and Mr Onilogbo had a duty to cooperate with the reasonable and lawful instructions of Challenge, including by providing evidence to support his absence from work by reason of “mental stress”.
The seven allegations of 29 August 2023 about Mr Onilogbo’s conduct were never investigated, because Mr Onilogbo would not meet with Challenge to discuss his response. Although there is overlap between allegations 3 and 4 and the issues that arose for determination in this case, the majority of the allegations made on 29 August 2023 remain untested.
Mr Onilogbo submits that Mr Jongebloed had “been compromised” based on his email to Ms Hutchinson on 1 September 2023 (which Mr Onilogbo incorrectly states was sent on 4 September 2023). I do not see anything in the correspondence to suggest that the Union was not acting in Mr Onilogbo’s best interests. Although denied at the time, Mr Onilogbo’s statement to the Commission asserts that he was in fact in “the middle of working out time based on his (Mr Jongebloed’s) availability to attend the workplace meeting”. Mr Jongebloed’s communication to Challenge on 1 September 2023 was consistent with this activity. The subsequent reference by Ms Hutchinson to forming “another strategy” was a reference to the internal decisions of Challenge. These were decisions to be made separately from its efforts to cooperate with the Union acting for Mr Onilogbo.
Mr Onilogbo states that the actions of Challenge subjected him to depression. It is unremarkable that the deterioration of an employment relationship can cause distress and disruption, both emotional and financial. However, the only evidence of Mr Onilogbo’s medical condition is mere assertion. On the materials, I am unable to reach any firm conclusions about the personal or financial consequences of the dismissal for Mr Onilogbo and his family.
Mr Onilogbo was employed for approximately 2 years and 8 months. He was paid 2 week’s wages in lieu of notice of termination on the day the dismissal took effect together with his accrued leave entitlements.
Mr Onilogbo was not unfairly dismissed
There was a valid reason for the dismissal. Notice of that reason was given to Mr Onilogbo and he had a reasonable opportunity to respond, including by cooperating with Challenge about its request for a meeting and a medical certificate. Although there were deficiencies in the handling of the roster dispute and in the choice of language by Mr Sarkar (in relation to “trespassing” and calling the police), the process giving effect to the dismissal was separate and consistent with the principles of natural justice. The remaining matters of relevance are either neutral considerations or were not established by Mr Onilogbo.
On balance, I am not satisfied that the dismissal was harsh, unjust or unreasonable.
Order
Application U2023/9832 is dismissed.
COMMISSIONER
Appearances:
No appearance from R Onilogbo.
S Lo of Australian Federation of Employers and Industries for the respondent.
Hearing details:
2024.
Sydney:
February 20.
Final written submissions:
March 1.
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