Rizwan Ahmad Khokhar v Bytecraft Systems
[2010] FWA 3913
•4 JUNE 2010
[2010] FWA 3913 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Rizwan Ahmad Khokhar
v
Bytecraft Systems
(U2010/5165)
COMMISSIONER CLOGHAN | PERTH, 4 JUNE 2010 |
Unfair dismissal.
[1] This is an application by Mr Rizwan Ahmad Khokhar (“the Applicant”) alleging that he was unfairly dismissed from his employment at Bytecraft Systems Pty Ltd (“the Employer”) on 30 December 2009.
[2] Mr Khokhar has made the application pursuant to s.394 of the Fair Work Act 2009 (“the Act”).
[3] The application was unable to be settled in conciliation and subsequently referred to me for arbitration. Following a conference on 24 February 2010 and Directions issued on 24 February 2010 and amended on 12 March 2010, arbitration took place on 28 April and 7 May 2010.
[4] The Applicant gave evidence along with his brother Mr Mohammad Khokhar and Ms Phillipa Chambers. Mr Leigh Davies and Mr Dale Marsden gave evidence for the Employer.
[5] Having heard submissions, evidence and received a number of exhibits, I reserved my decision on Mr Khokhar’s application. In reaching this decision, I have considered all the material provided to the Tribunal.
BACKGROUND
[6] Mr Khokhar commenced employment with Bytecraft Systems Pty Ltd on 1 August 2006. From 15 December 2005 to 31 July 2006, Mr Khokhar was employed by an agency that was providing services to the Employer.
[7] From January 2008 until the day of his termination of employment, Mr Khokhar was employed as a Service Technician and located at the Burswood Entertainment Complex in Perth.
[8] On 16 December 2009, the Applicant met with Mr Dale Marsden, his immediate supervisor and Mr Leigh Davies, Acting WA State Manager, who queried the reasons for his absence from work on 7 December 2009. The Employer had become aware that the Applicant had attended a Burswood Casino staff Christmas party (“the Christmas party”) at the Summer Marquee Burswood, on the evening of 7 December 2009. This meeting was followed by a further meeting on 30 December 2009, regarding the same subject with these same persons in attendance. At this meeting, the Applicant was advised that his employment was terminated.
[9] On 7 January 2010, the Applicant received the following letter of termination of employment:
“7 January 2010
Dear Rizwan
I am writing to formally confirm that at our meeting, also attended by your supervisor Dale Marsden, on Wednesday 30th December 2009, your employment with Bytecraft Systems was terminated on the grounds that we believe you deliberately mislead the company by providing a false excuse as to your absence from work on 7th December 2009.
As discussed at our meetings on both 16th December 2009 and 30th December 2009 – this instance was not the first time you have fabricated an excuse for not attending work. While you have been given the opportunity to respond, it is our view that your various explanations as to the reasons for your absence were inconsistent and unacceptable.
As such actions constitute misconduct; your employment was terminated with notice as of 30th December 2009.
…
Yours sincerely
Bytecraft Systems Pty Ltd
Leigh Davies
Operations Manager” 1
[10] The Employer’s reasons for terminating the employment of the Applicant are self evident; that is, he had provided a false or fabricated excuse for his absence from work on 7 December 2009 and this was not the first time it had occurred.
[11] The Applicant’s conditions of employment are, in part, regulated by the Bytecraft Systems Employee Collective Agreement 2009, Western Australia 2.
RELEVANT MATTERS FOR CONSIDERATION
[12] The events leading to the Applicant’s termination of employment were the subject of considerable dispute as were the content and conduct of both meetings on 13 and 30 December 2009. I shall address the events leading to the termination of employment in the following manner.
The Applicant’s Case
[13] The Applicant is of the Islamic faith. For a Muslim, the focus of life is to have their soul become closer to Allah. Death is not the end of life but the final journey to join Allah, that is, the bringing of a Muslim to their most desired spiritual point.
[14] On 23 November 2009, the Applicant’s uncle and familial head died in Pakistan (the Applicant’s father being deceased). The Applicant’s eldest brother organised a prayer ceremony for 7 December 2009, consistent with the Islamic faith.
[15] On 5 December, the Applicant’s brother, Mr Muhammad Khokhar reminded him of the prayer ceremony. Mr Muhammad Khokhar had previously advised the Applicant of the prayer ceremony.
[16] On 6 December 2009, the Applicant completed a 12 hour shift at 6:00pm. At approximately 7:04pm, the Applicant telephoned his immediate supervisor Mr Dale Marsden and left a voicemail message to say that he would be taking compassionate leave for his next shift on 7 December 2009 commencing at 6:00pm. The content of this message is disputed by the Employer.
[17] The Applicant did not receive a response from Mr Marsden and, on the following day, attended the prayer ceremony at his brother’s house. The prayer ceremony involved prayers and readings from the Quran.
[18] At approximately 6:45pm the Applicant left his brother’s house to return home to continue readings from the Quran when he was contacted, by telephone, by Ms Phillipa Chambers – a friend and Executive Host of the Pearl Room Burswood Resort Casino. The Applicant agreed to pick up and drive home Ms Chambers and her boyfriend from the Christmas party. The Applicant, in the first instance, continued home and dropped off the Quran.
[19] The Applicant arrived at the Summer Marquee Burswood at approximately 7:45pm. Unbeknown to Mr Khokhar, Ms Chambers had purchased an admittance ticket and he joined the Christmas party. After dinner, at approximately 8:30pm, the Applicant, Ms Chambers and her boyfriend left the party. Mr Khokhar dropped his passengers off and went home and continued with his readings of the Quran.
[20] On 8 December 2009, the Applicant received a blank leave form from his Employer. As there was no provision for compassionate leave, the Applicant ticked carer’s leave and submitted the form on 13 December 2009.
[21] On 14 December 2009, the Applicant was advised by Mr Dale Marsden to make himself available for a meeting with himself and Mr Leigh Davies at 6:00am on 16 December 2009. This meeting was to coincide with the conclusion of the Applicant’s 12 hour night shift. The Applicant submits that he was not advised of the nature of the meeting.
[22] The Applicant asserts that Mr Davies did not introduce himself and sought an immediate answer to the question, “On 7 December you were supposed to be here. How did you end up at the dinner?” 3 The Applicant stated that he attempted to explain about his uncle and the required prayers, but Mr Davies’ response was along the lines, “I don’t give a fuck about your religion. Just tell me – cut the crap and tell me how did you end up at the dinner?”4 The Applicant further states that he attempted to explain the message left with Mr Marsden. Mr Davies’ response was, “Bullshit. You’re lying.”5 The meeting concluded on the basis that Mr Davies would contact human resources.
[23] According to the Applicant, he was tired, exhausted and not able to concentrate. Further, that the meeting was carried out in an aggressive, intimidating and loud atmosphere.
[24] While much of the content of the meeting is disputed, there is agreement that Mr Khokhar raised the issue of tiredness but not “safety per se”. The Applicant maintains that he also raised the issue of working on 240 volt machines, the need to concentrate and the possibility of harm to himself and those who he is working with; it is for this reason, he was concerned about working while not having slept for 36 hours. According to the Applicant, he offered to provide a statement from Ms Chambers and that Mr Davies could contact either her or his brother regarding their respective roles on 7 December 2009.
[25] Simply put, the Applicant states that Mr Davies and Mr Marsden refused to accept Mr Khokhar’s explanation of how he came to be at the Christmas party.
[26] On 30 December 2009, the Applicant commenced work at 6:00am and was advised by Mr Marsden to attend a meeting with Mr Davies at 10:00am. The Applicant was not advised of the purpose of the meeting. On entering the meeting, the Applicant contends that Mr Davies behaved aggressively and started the meting by saying that, “we are seriously considering terminating your employment” 6. Mr Khokhar asked whether he needed “anyone”7 but received the response, “No, it won’t be necessary”8. The Applicant was again asked what happened on 7 December 2009. After providing an explanation, Mr Davies took the view that Mr Khokhar was lying and that he had purchased a ticket and went to the Christmas party.
[27] After being asked to leave the meeting for approximately 10 minutes, the Applicant returned to be told that his employment had been terminated. Subsequently, the Applicant received the letter of termination of employment in the mail.
The Employer’s Case
[28] Ms Laird, on behalf of the Employer, stated in her opening address:
“It is not the absence per say that resulted in the termination of Mr Khokhar’s employment but his untruthfulness with the employer. The employer in the face of repeated untruthfulness could no longer have the requisite trust and confidence in Mr Khokhar to maintain the employment relationship. This is particularly the case, in our submission, in an industry where Mr Khokhar is required to work on gaming machines and is often required to work on his own.” 9
and
“We say that even if the events or the version of events regarding his attendance at the prayer ceremony is in fact true, it does not change the fundamental fact that Mr Khokhar lied to his employer, not once but repeatedly. If Mr Khokhar knew, as I believe the evidence will show and has shown, that he had prior warning that he needed to be absent on 7 December, for whatever reason, he could have applied for annual leave and that would have been the appropriate leave to be applied for in the circumstances.” 10
and
“He [Mr Khokhar] stuck to these events in both the meeting of the 16th and the 30th will be the evidence that will be presented to the Commission. My client then on the balance of probabilities did not believe the version of events being presented by Mr Khokhar at both meetings of the 16th and the 30th. The version of events that Mr Khokhar has presented to the Commission today, in our submission, were never raised during his period of employment. And the first time that the death of an uncle was raised with my client was as part of the conciliation process, which of course I won’t go into any detail of what was said there, but that was the first time my client was aware of a version which included a dead uncle and a prayer service.” 11
[29] The difference essentially between the Employer and the Applicant is that:
- the voicemail message received by Mr Marsden on 6 December 2009 was that Mr Khokhar was unable to attend work on 7 December 2009 as he was going to be in Joondalup Hospital with his uncle who had suffered a brain haemorrhage 12;
- the Applicant did not request compassionate leave 13;
- the Employer does not accept the Applicant’s assertion that Ms Chambers telephoned him and sought a lift home for herself and her boyfriend from the Summer Marquee at Burswood;
- the Employer does not accept the assertion of the Applicant, that he knew nothing of the purchase of a ticket for the Christmas party by Ms Chambers;
- the Employer denies that religion was mentioned at either meeting on 16 and 30 December 2009;
- the Employer denies that Mr Davies behaved aggressively or intimidated or threatened the Applicant in their meetings on 16 and 30 December 2009;
- the Employer denies that Mr Khokhar requested a support person at the 16 and 30 December 2009 meetings;
- the Employer denies calling the Applicant a liar or using the swear words described in his evidence;
- the Employer contends that the Applicant was provided with procedural fairness and his interests were not adversely affected.
[30] Simply put, the Employer gave Mr Khokhar an opportunity to provide an explanation of events. Having done so, Mr Davies and Mr Marsden did not accept the explanation and terminated his employment for being untruthful.
[31] Returning to paragraph [9] and the letter of termination of employment, it is necessary for the Tribunal to consider whether the Employer had a reasonable belief that the Applicant provided a false or fabricated excuse for his absence from work on 7 December 2009 and whether this had happened previously.
DISCUSSION AND CONSIDERATION
Did the Employer have a reasonable belief that the Applicant provided a false or fabricated excuse for his absence from work on 7 December 2009?
[32] Ms Laird stated in her final submission to the Tribunal that the Employer’s position is simple:
“Mr Davies reasonably believed that the applicant, Mr Khokhar, was untruthful about his absence on 7 December 2009 and attendance at the social function (the ball)”;
and
“The termination was not related to the absence or reason for absence per se, but was based on the reasonable conclusion that he was untruthful with his employer and the necessary trust relationship.” 14
[33] Mr Davies’ view of whether the Applicant was being untruthful commenced with the investigation by Mr Marsden prior to the meeting on 16 December 2009.
[34] For this reason, I consider the evidence of Mr Marsden crucial in determining there was a reasonable belief on behalf of the Employer that Mr Khokhar was untruthful regarding his absence on 7 December 2009.
[35] Mr Marsden became aware, by email, shortly after 9 December 2009 from Mr Chris Waldie, Burswood Gaming Business Systems Development Manager that, on 1 December 2009, the following tickets were purchased for the Christmas party:
“2 x Phillipa Chambers
2 x …
1 x Rizwan Khokhar” 15
[36] Mr Marsden’s own evidence is that the Christmas party was sold out, entry was by ticket only and that contractors such as Mr Khokhar could attend 16. Having become aware of this information, Mr Marsden contacted the Acting State Manager, Mr Davies, and advised him of the ticket in the name of Mr Khokhar and the fact that Mr Khokhar had telephoned him saying that he was unavailable to work on the night of the Christmas party.
[37] While cross examination was not as precise as could be, Mr King, on behalf of Mr Khokhar, put to Mr Marsden in relation to the email in paragraph [35] the following:
“…So you had this email in your possession that you’ve based you and Mr Davies have based your belief upon that Mr Khokhar?---Yes.” 17
The use of the word “belief” relates to the Applicant’s letter of termination of employment.
[38] Further, in relation to his telephone discussion with Mr Davies prior to the meeting on 16 December 2009, Mr Marsden gave evidence that:
“I told him what I had found and the evidence that I had…” 18 [my emphasis]
It is reasonable at this stage to ask evidence of what?
[39] When Mr Marsden was asked in cross examination, why was the decision made to terminate his employment, he replied:
“We don’t believe he was being truthful.” 19
and
“You don’t believe, based on what?---Based on the original story we were told, the evidence that he was actually – and an admission that he was at the ball.” 20 [my emphasis]
[40] The issue that the Employer did not believe as truthful was that the Applicant knew nothing about a ticket being purchased for him, that is to say, his explanation regarding receiving a telephone call from Ms Chambers. For the Employer, it was explained by Mr Davies:
“…I explained to him that he’d deliberately deceived us to call in sick or take the night off work.” 21
[41] From the evidence in the hearing, I conclude that Mr Marsden had formed a view that because the Applicant had admitted he was at the Christmas party, then his sole purpose in telephoning him on 6 December 2009, and his explanation of how he came to be there, was untruthful.
[42] Tellingly, in cross-examination, when asked why he did not contact Mr Khokhar’s brother or Ms Chambers, Mr Marsden stated:
“Well he admitted to us that he’d been there, there was no reason to call them.” 22
and
“Now you said that he was terminated on yours and Mr Marsden – Mr Davies’ belief?---Yes.
“For falsely – if providing a false story, for want of a better word?---Mm.
“When did you develop that belief?---That he had produced a false story about his absence?
“Yes?---When I was told that he had attended the ball on the night that he was absent.” 23 [ my emphasis]
[43] In relation to the meeting on 16 December 2009, evidence was given by Mr Marsden:
“So you’ve gone to that meeting, both of you, believing that there is – that he’s absent from work because he went to that ball?---The firs (sic) meeting on the 16th we suspected, yes.”
“Because based- - -?---That's why we had the meeting.”
“Based upon the email?---Yes.” 24
[44] When Mr Davies arrived in Western Australia, he had seen the email and:
“…Dale contacted me on the 7th to say that he thought that there might have been some inklings around the place that Rizwin was intending on attending the ball.” 25
[45] For Mr Davies, the Applicant’s explanation of why he came to be at the Christmas party is consistent with his statements to the Tribunal:
“Did Mr Khokhar try and explain to you why he wasn’t there on 7 December?---He did. What he put down in his statement is what his explanation is at the time.”
“Sorry?---At the time, yes, he gave me his explanation, yes.” 26
[46] This is also consistent with the words of Mr Marsden where the Applicant repeated on 30 December 2009:
“Almost word for word what he had said on the 16th of December.” 27
[47] In summary, Mr Khokhar was consistent with his explanation of how he came to be at the Christmas party on both 16 and 30 December 2009. However, Mr Marsden and Mr Davies decided that, in the circumstances of Mr Khokhar’s untruthfulness, his employment would be terminated.
[48] The evidence of Ms Chambers, while containing some peculiarities, was resolute in her evidence that she bought and provided a ticket for Mr Khokhar without his knowledge. Further, the Applicant’s attendance at the Christmas party happened by accident, he arrived after pre-dinner drinks (this is not to suggest he drinks alcohol) and entrees, and inappropriately addressed. Finally, his attendance lasted for approximately 45 minutes.
[49] After considering written statements and oral evidence, I am satisfied that the Employer’s termination of Mr Khokhar started with the premise that it had “evidence” that a ticket had been purchased on 1 December 2009 in the name of the Applicant for the Christmas party on 7 December 2009. Secondly, that there were rumours in the workplace that Mr Khokhar was intending to attend the Christmas party. These beliefs were further built upon by the Applicant seeking compassionate leave for his working shift commencing at 6:00pm on the night of the Christmas party.
[50] I am satisfied, that having met with Mr Khokhar on 16 December 2009, heard his explanation of why he came to be at the Christmas party and admitting his attendance, the Employer concluded that the Applicant had intended, from the outset, to attend the party and any explanation to the contrary, would be rejected as untruthful.
[51] For the Tribunal to be persuaded to accept the Employer’s conclusion, I need to consider the premises or “building blocks” leading to Mr Khokhar’s termination of employment.
[52] Firstly, it is indisputable that a ticket to the Christmas party was bought in the name of the Applicant. However, this does not necessarily lead to a view that Mr Khokhar knew about the purchase and that he had made a deliberate decision to attend. The evidence of Ms Chambers repeatedly was that the Applicant was unaware of its purchase until admitted to the Summer Marquee on the night.
[53] Mr Davies gave evidence that, at the meeting on 30 December 2009, Mr Khokhar changed his mind and that Ms Chambers approached him and asked whether he wanted to go to the Christmas party. This assertion is contrary to Mr Marsden’s evidence 28, rejected by Ms Chambers29 and denied by Mr Khokhar30.
[54] I am satisfied, on all the evidence, that the Applicant was unaware that a ticket to the Christmas party had been purchased in his name, and only on arriving at the Summer Marquee, did he comprehend that a ticket had been bought for him.
[55] Secondly, a rumour is by definition of doubtful accuracy and, for the Tribunal, does not demonstrate that the Applicant was untruthful.
[56] Thirdly, it is a fact that Mr Khokhar applied for compassionate leave, which was later changed to carer’s leave. However, as Ms Laird has conceded, the Employer would have approved leave for a prayer service and that the termination of employment is not related to the absence or reason for absence 31.
[57] After two meetings, the Employer reached the conclusion that Mr Khokhar was being untruthful. As put by Ms Laird for the Employer:
“The version of events presented by Mr Khokhar regarding how he came to be at the ball was both illogical and unbelievable.” 32
[58] Essentially, the Employer is putting, in reverse that its version of events is logical and believable; however, as I have already said that submission is not as solid as she may think.
[59] To assist its position, the Employer has put to the Tribunal that the “credibility of witnesses is, in our submission, key to the determination of this matter.” 33
[60] If I take this as another “building block” of the Employer’s case, I need to commence with the credibility of the Applicant. It was conceded by the Employer that performance of the Applicant was not an issue. Further, it had not been an issue for the entire period Mr Khokhar had been employed, save possibly, the one incident. Further, Mr Marsden, as his immediate supervisor gave evidence that as far as he was aware, Mr Khokhar had not lied in any way during his period of employment.
[61] The Applicant was unaware of the purpose of the first meeting on 16 December 2009. However, both Mr Marsden and Mr Davies confirmed that his version of attendance at the Christmas party was consistent with the meeting on 30 December 2009 and was not disturbed in any material way in cross examination.
[62] In contrast to Mr Khokhar, I would partly agree with Ms Laird in relation to Ms Chambers. Ms Chambers gave evidence of the events on the night of the Christmas party and leading up to it. As a witness for the Applicant, it could be said that she may be partisan, but an overall assessment of her evidence would be that she may have been a hindrance rather than a help. However, she gave sworn evidence, and was cross examined, on the issue specifically relating to how the Applicant came to be at the Christmas party. In these circumstances, I need to be careful not to deduce from Ms Chambers’ lifestyle that her core evidence is not believable as requested by the Employer. In summary, while I have some disquiet regarding Ms Chambers’ evidence, the finality of her evidence and denials of the Employer’s contentions, leads me to the view that she corroborated the evidence given by the Applicant.
Did the Employer have a reasonable belief that the Applicant provided a false or fabricated excuse for his absence previously in his employment?
[63] The second ground for terminating the Applicant’s employment is contained in the words of the letter of termination, “this instance was not the first time you have fabricated an excuse for not attending work” 34. I intend to deal with this matter swiftly as follows:
- it was not raised by the Employer at the first meeting on 16 December 2009 35;
- it was not raised by the Employer at the second meeting on 30 December 2009 36;
- it was raised by Mr Khokhar at the second meeting on 30 December 2009 37;
- Mr Davies, the author of the termination letter, gave evidence that he vaguely remembers Mr Marsden telling him about another incident in June 2009 and could not recall any details 38;
- however, was prepared to say in evidence, “It was raised but it was- - -?---I was just trying to see whether he’d agree with us that he had a history of being untruthful. And then in the second meeting Rizwin actually opened up the meeting by wanting to discuss that event and not the event at hand.” 39; and
- there was a paucity of evidence; and
- although this is disputed, the most that occurred in June 2009 was that the Applicant received a verbal warning.
[64] I am satisfied that there is no evidence to suggest that the Applicant previously fabricated an excuse not to attend work. On the evidence, it appears that the Applicant’s previous behaviour did not display a pattern of dishonesty.
LEGISLATIVE FRAMEWORK
[65] Bytecraft Systems is a national system employer with 15 or more employees. Further, Mr Khokhar has completed the minimum period of employment provisions of s.383 of the Act.
[66] I now turn to the key provisions of the Act as they relate to this application.
- Section 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.
and
- Section 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.
Was there a valid reason for Mr Khokhar’s dismissal related to his capacity or conduct?
[67] For the reasons I have already set out, I have to conclude that there was not a valid reason to terminate Mr Khokhar’s employment.
[68] I am satisfied on the evidence, that the Employer, mainly Mr Marsden, made a judgement very early that the email, rumour and an application for compassionate leave could only lead to one conclusion and that was that the Applicant had predetermined to attend the Christmas party and not attend work as he was required to do.
[69] This is no better demonstrated when Mr Marsden and Mr Davies in cross examination state:
“He’s made no admission whatsoever. I put to you that you and Mr Davies denied Mr Khokhar any chance of tendering any evidence to you. He offered the names and phone numbers of his brother and Ms Chambers and it wasn’t to be accepted. You didn’t want to know?---Well he admitted to us that he’d been there, there was no reason to call them.” 40 [my emphasis]
“Did he offer you any witnesses that could probably verify?---On the second meeting he said that he could have Pippa (? 25354) contact me to say that she hadn't told him that he bought the ticket and I said that wasn’t necessary at that stage.” 41
“Why wasn’t that necessary?---Because I didn’t believe what she would tell me would be truthful, that was my belief at the time.” 42 [my emphasis]
[70] Due process requires that rather than jump to a conclusion, the Employer could have and should have investigated further whether the Applicant had an explanation which brought their initial conclusion into question.
Procedural fairness and process generally
[71] The Applicant was clearly notified of the reason of his termination of employment. The Applicant was provided with the opportunity to respond but this was not accepted by the Employer.
[72] In view of the lack of evidence, its conflicting nature and my reasons already set out, I consider it unnecessary to determine whether the Applicant was denied a support person be present during the discussion and it is not critical to my Decision.
[73] The dismissal does not relate to unsatisfactory performance.
[74] The Employer is a national organisation with operations interstate. The Employer had access and did access human resource management. I note that this was the first occasion that Mr Davies, as Acting State Manager, had to terminate an employee’s employment.
Remedy for unfair dismissal.
[75] Section 390 states:
(1) Subject to subsection (3), FWA may order a person's reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
[76] I am satisfied that the Applicant was protected from unfair dismissal at the time of being unfairly dismissed. The Applicant, Mr Khokhar, is not seeking the remedy of reinstatement as provided for in s.390(1) of the Act and, in view of the circumstances leading to Mr Khokhar’s termination of employment as set out in this Decision, I am satisfied, pursuant to s.390(3)(a) of the Act, that reinstatement is not appropriate.
[77] The Applicant has made an application under s.394 of the Act, consequently, as reinstatement is not a suitable remedy, I am satisfied that an order for compensation is appropriate as provided in s.390(3)(b) of the Act.
Compensation.
[78] The relevant parts of s.392 of the Act that are applicable to this application are as follows:
Compensation
(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's enterprise; and
(b) the length of the person's service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
What compensation should the Applicant receive?
[79] The Applicant was employed by the Employer for a period of three years and five months at the time of termination of employment. The Applicant was earning $59,479 per annum. The Applicant received four (4) weeks pay in lieu of notice. Effectively, his income creased on 28 January 2010.
[80] The Applicant submits he has made applications for over 100 positions and with a considerable number, he was the most suitable candidate. However, upon the prospective employer contacting the Employer for a reference, the Applicant has then been advised he was unsuitable for the position. I am satisfied that the Applicant from 30 December 2009 sought alternative employment.
[81] The Applicant recommenced employment on 21 April 2010. From the evidence, I am satisfied that in his new employment, his salary is less than that when employed by the Employer.
[82] The remedy sought by the Applicant is compensation as set out in Exhibit R2 of the Applicant’s Statement of Particulars of Claim and paragraph 12 of the transcript of proceedings.
[83] The Applicant understands the Employer’s position, that the employment relationship has irretrievable broken down. Given the significant amount of conflicting evidence, this would appear more so now than it was, at the time of termination of employment. Further, in view of the fact that the industry of the Employer is gaming, it is essential to have that trust and confidence in employees.
[84] I am satisfied that if the Applicant had been more diligent in advising the Employer of the prayer ceremony, the whole sequence of events leading to his termination may not have occurred. Having been advised of the prayer ceremony four to five days prior to 5 December 2009 by his elder brother, Mr Mohammad Khokhar, he had to remind him again on 5 December 2009. Further, the reminder occurred at approximately 2:00pm on 5 December 2009 but the telephone call to the Applicant’s supervisor did not take place until 7:06pm on 6 December 2009, less than 24 hours before the commencement of his next shift at 6:00pm on 7 December 2009.
[85] I also note that this matter was set down for 24 March 2010 but put back to 26 March 2010 due to the later arrival of material from the Applicant, which in turn, led to difficulties and delay with an Employer’s witness.
[86] Further, the hearing had to be adjourned from 28 April to 7 May 2010 due to Ms Chambers giving notice that she could not attend the proceeding due to a cold.
[87] While the Employer has submitted that any amount ordered for compensation should be zero or alternatively minimal, I am satisfied that, in all the circumstances, to determine such a proposal would be unfair.
[88] In the circumstances, I am satisfied that the Applicant should receive 12 weeks compensation which is the period of time between his termination of employment and recommencing work with another employer less the four weeks pay in lieu of notice. In doing so, I have reached the conclusion that, although the Applicant did not engage in conduct which could be described as misconduct in accordance with s.392(3) of the Act, however, his lack of attention to his brother’s notification regarding the prayer ceremony and lethargy to letting the Employer know of his impending absence, are matters which I should not disregard when considering the amount of compensation. Further, I am mindful of the delays in determining this matter, while not directly attributable to the Applicant himself, they are part of all the circumstances of the case and should not prejudice the Employer. For these reasons, I am not prepared to agree to the Applicant’s request for compensation of 20 weeks pay.
CONCLUSION
[89] In accordance with my reasons and findings above, I am satisfied that Mr Khokhar was unfairly dismissed by Bytecraft Systems. I am also satisfied that reinstatement is inappropriate and an Order in the terms set out in this Decision will be issued.
PROCESS OF HEARING
[90] On 28 April 2010, I advised both parties that, following the resumption of the hearing (by video link for the Employer), I would receive written final submissions from the parties by no later than 5 working days after its conclusion.
[91] The hearing resumed on 7 May 2010 and consequently, final submissions were due at 2:00pm WST on 14 May 2010.
[92] On 14 May 2010, the Applicant requested an extension to 17 May 2010 for final submissions. That request was granted.
[93] On 17 May 2010, my Chambers received an email from persons, presumably on behalf of the Applicant’s representative, saying that final submissions will be completed that evening. No final submissions were received that evening.
[94] Having received no communication from the Applicant’s representative, on 21 May 2010, my Associate emailed to the Applicant’s representative that “to be fair to both parties, the Commissioner advises that unless he receives your submission by 10am on Monday 24 May 2010, he is unable to accept any further material from the Applicant”.
[95] At 6:03am on 24 May 2010, my Chambers received an email that the Applicant’s representative which commenced “I only received your email on Sunday re the closing submissions as was not on the computer checking prior to then I can have the submissions submitted to you electronically by the end of today Monday 24 May 2010” and “As I will be out with appointment most of the morning having to leave at 6am as soon as I am returned home I will complete the section required and submit immediately this day”.
[96] My Associate advised that no further extensions beyond 10:00am would be granted.
[97] The Applicant’s representative on 25 May 2010 stated that “In reference to your email of 22 (sic) May 2010 not received by me until late afternoon (due to appointments all day) and the email dated 21 May 2010 which was not received until Sunday 23 May 2010 by me” and “as per my email of the 24th May 2010 I stated I had appointments and would not be unable (sic) to submit till the end of that day however your email received said the Commissioner would not accept any further extensions Therefore we now have fully prepared submissions that are not allowed to be submitted”.
[98] Some representatives of parties seem to think that the Tribunal should “fit around” their appointments and when they care to read emails. Case management of applications is an important role of the Tribunal and should be carried out in a fair and impartial way, but this cannot or should not mean acceding to every request of representatives. The Applicant’s representative had over two weeks’ notice when final submissions needed to be completed. In addition, he had a further 10 days to complete those submissions.
[99] The Applicant’s representative failed to meet the Tribunal’s deadline on at least two occasions. I am not prepared to have his failure relocated to the Tribunal.
[100] This matter was concluded without final submissions from the Applicant.
COMMISSIONER
Appearances:
Mr Paul King of Regis Industrial Relations for the Applicant.
Ms Cheryl-Anne Laird of Livingstones Australia for the Respondent.
Hearing details:
2010
Perth:
28 April
7 May
Final written submissions:
2010
24 May
10:00am
1 Exhibit A4
2 Exhibit A1
3 PN 200
4 PN 200
5 PN 200
6 PN 243
7 PN 241
8 PN 242
9 PN 1014
10 PN 1013
11 PN 1012
12 Exhibit R3
13 Statement of Facts
14 Final written submission page 3 of 26
15 Exhibit R3
16 Exhibit R3
17 PN 1061
18 PN 1093
19 PN 1139
20 PN 1140
21 PN 1369
22 PN 1172
23 PN 1179 to PN 1182
24 PN 1191 to PN 1193
25 PN 1302
26 PN 1306 and PN 1307
27 Exhibit R3
28 Exhibit R3
29 PN 1596
30 PN 684
31 Final written submission page 3 of 26
32 Final written submission page 3 of 26
33 Final written submission page 4 of 26
34 Exhibit A1
35 PN 1207
36 PN 1209
37 PN 1209
38 PN 1376 to PN 1379
39 PN 1419
40 PN 1172
41 PN 1309
42 PN 1310
Printed by authority of the Commonwealth Government Printer
<Price code C, PR997388>
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