Saeed Hasen v The Security Hub Pty Ltd
[2024] FWC 1394
•28 MAY 2024
| [2024] FWC 1394 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Saeed Hasen
v
The Security Hub Pty Ltd
(C2024/721)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 28 MAY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant was dismissed – jurisdictional objection dismissed
On 6 February 2024, Mr Saeed Hasen made an application to the Commission pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act). Mr Hasen alleges that he was dismissed from his employment with The Security Hub Pty Ltd in contravention of the general protections contained in Part 3-1 of the Act.
The respondent objects to the application on the basis that Mr Hasen was not dismissed. The matter proceeded to a jurisdictional hearing before me.
For the reasons that follow, I find that Mr Hasen has been dismissed within the meaning of s 386(1)(a) of the Act. Accordingly, the respondent’s jurisdictional objection is dismissed.
Context
Mr Hasen was employed by the respondent on a casual basis as a security officer to perform security services at sites instructed by the respondent.[1] Mr Hasen was managed during his employment by Mr Sam Rehlon, the respondent’s Business Manager and a Team Leader, Deni Kulas.
The evidence establishes that the respondent employs approximately 400 casual security guards to perform ad hoc security services for its clients on an event or short-term basis. The respondent uses a rostering system which typically involves calling or sending text messages or WhatsApp messages to personnel on its books, in which they are invited to make themselves available for work opportunities. Shifts are thereafter issued to employees by using the “Guardhouse application.”[2] Mr Hasen said did not typically use WhatsApp and relied upon emails and the Guardhouse application for casual work opportunities with the respondent.[3]
Mr Hasen was engaged by the respondent to perform security services during the Australian Open in January 2022. In his substantive application, Mr Hasen raises concerns about the location at which he was instructed to stand during this engagement.[4] For the two years that followed, Mr Hasen says that he was allocated “very little work” by the respondent by comparison to his non-African colleagues and feels that he was discriminated against.[5]
Mr Hasen relevantly accepted a further engagement with the respondent to perform casual security services at the Australian Open in January 2024.[6] Mr Hasen gave evidence that the event would occur over the period of approximately one month.[7] Mr Hasen was issued with a polo shirt by the respondent,[8] which he was required to wear during each shift. It is not in dispute that Mr Hasen, like other security guards, was to return the polo shirt to the respondent on the “last day of the event.”[9]
Mr Hasen was also issued with an accreditation card, which provided him with access and free movement within Melbourne Park, the location in which he was to perform his role at the Australian Open. The evidence discloses that the accreditation card was not required to be returned by Mr Hasen to the respondent upon the conclusion of the event.[10]
Pursuant to a roster for the week 15 January to 21 January 2024, provided to Mr Hasen on 12 January 2024,[11] Mr Hasen was rostered to perform work at the Australian Open on each day from Monday 15 January to Saturday 20 January 2024 from 10:30 to 21:00 at John Cain Arena. He was required to wear the event polo shirt, black pants and black shoes. He was not required to perform work on Sunday 21 January 2024.[12]
During his shifts at the Australian Open on 15 January and 16 January 2024, Mr Hasen submits that the temperature was very hot, and he does not consider that he was given adequate hydration or comfort breaks. Mr Hasen contends that these events demonstrate that he was subjected to racial discrimination at work.
The alleged dismissal
Mr Hasen submits that the concerns he had expressed in relation to the above matters led to the respondent’s Business Manager, Mr Rehlon, asking him on the morning of 17 January 2024 if he “was happy.” Mr Hasen said that he advised Mr Rehlon that he was “not happy” that he had not been given a break during his shifts and that he “felt discriminated against in not being able to access water or the bathroom in hot conditions over the previous two days.”[13] Mr Hasen gave oral evidence that Mr Rehlon then asked him to return his work-issued polo shirt, saying as follows:[14]
“'Okay, if you are not happy just give my T-shirt, my stuff and then go', and he was very angry.”
Mr Hasen said that he took off his work issued polo shirt, which he had been wearing, and handed it to Mr Rehlon together with his accreditation card.[15] There is no evidence that Mr Rehlon asked Mr Hasen to return his accreditation card.
Mr Hasen said that when he handed his polo shirt and accreditation card to Mr Rehlon, Mr Hasen said words to the effect of, “'I'm not very hard time, it's okay,” and 'I'm not working. Okay.” Mr Hasen said that Mr Rehlon responded, “Okay, I will leave to you” and Mr Hasen “just left.”[16]
During cross-examination, Mr Hasen accepted the proposition that during his discussion with Mr Rehlon on 17 January 2024, he also said to Mr Rehlon, “If you ask me to leave, I will leave.” Mr Hasen said that because he was not in a “difficult time,” if “you say leave, okay, I’ll leave it, don’t worry.”[17] Mr Hasen clarified that he held this view because he was not in financial distress and would leave because Mr Rehlon had asked him “first” to do so.[18]
It is not in dispute that Mr Hasen did not perform his rostered shift on 17 January 2024. Mr Hasen was also rostered to work on 18 January, 19 January and 20 January 2024. Mr Hasen gave evidence that he did not attend to perform those shifts because he was “already dismissed” and he had returned his uniform and accreditation card.[19]
The respondent submits that it typically calls its employees on the afternoon prior to their rostered shift to ensure that they will be in attendance. It is not in dispute that on the afternoon of 17 January 2024, Mr Hasen received a telephone call from one of the respondent’s operation coordinators.[20] Mr Hasen gave evidence that he received this call “about a shift” and Mr Hasen thought, “maybe he doesn’t know about what happened to me.” Mr Hasen said that he advised the operation coordinator that he was “already dismissed, I’m fired.” He then said, “don’t call me back.”
On 26 January 2024, Mr Hasen received an email from “Guardhouse,” providing a “new roster for the week 22 January to 28 January at AO 2024.” Leaving aside the difficulty associated with the provision of a roster on 26 January for the period from 22 January to 28 January 2024, the roster demonstrates that Mr Hasen had not been allocated any shifts.[21]
Mr Rehlon did not give evidence in the proceeding. Further, the respondent filed a short statement of Deni Kulas, however Deni Kulas did not attend the hearing to give evidence or to attest to the truth of that statement. Accordingly, I have attributed the statement limited weight.[22]
Statutory framework and contentions
Section 365 of the Act provides that a person who has been dismissed may apply to the
Commission to deal with the dispute. The respondent submits that Mr Hasen was not dismissed. Accordingly, the Commission must first determine whether Mr Hasen was dismissed by the respondent before exercising any powers under s 368 of the Act to conciliate or mediate the substantive dispute.[23]
The circumstances in which a person is taken to be “dismissed” is set out in s 386 of the Act. Relevantly, s 386(1) provides as follows:
(1) A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
Mr Hasen contends that the respondent terminated his employment at its initiative within the meaning of s 386(1)(a). Mr Hasen relevantly submits that “my staff accreditation was taken from me, along with my shirt, which is evidence of dismissal.”[24]
The respondent denies that it dismissed Mr Hasen. Its position is that on 17 January 2024, Mr Hasen sought longer and more frequent breaks than permitted by the Security Services Industry Award 2020 (Security Award). The respondent submits that Mr Hasen was advised that it could not offer him greater flexibility “as the site is managed and controlled by” the respondent’s client and it adheres to break provisions specified in the Security Award. The respondent submits that after this discussion, Mr Hasen was asked if he still wanted to work within the break structure specified in the Security Award, which Mr Hasen declined. Accordingly, Mr Hasen was “asked to finish his shift and return his polo so it can be allocated to the next staff covering their shift as there is limited uniform that is provided to The Security Hub by its client and thus need to allocate the uniform to other staff that may cover the shift that the applicant dropped on 17th Jan 2024.”[25] However, at the jurisdictional hearing, the respondent submitted that Mr Hasen returned his polo shirt and accreditation card of his “own will.”[26]
The respondent submits that Mr Hasen did not perform his shift by “mutual agreement” on 17 January 2024. It says that Mr Hasen’s employment with the respondent was not, and has not been, terminated.[27] On the contrary, the respondent says that Mr Hasen remains an active profile on the Guardhouse application.[28] It sent to Mr Hasen a WhatsApp message (addressed to “Staff”) on 12 February 2024 advising that it has shifts available for the Grand Prix 2024 and to respond with “YES” if he was looking to work at this event for the respondent.[29] The respondent contends that these matters demonstrate that no positive decision was made by it to inactivate Mr Hasen’s profile (and thereby conclude his employment) at any stage on or after 17 January 2024.[30] The respondent further submits that Mr Hasen’s statement to the operation coordinator to not call him again demonstrates that Mr Hasen elected to cease contact with the respondent, and not the other way around.[31]
Consideration
Section 386(1)(a) of the Act refers to a dismissal occurring where a person’s employment has been “terminated on the employer’s initiative.” There may be a dismissal pursuant to s 386(1)(a) where the action of the employer is the principal contributing factor leading to the employment termination.[32]
It is not in dispute that Mr Hasen was engaged by the respondent on a casual basis. “Casual” employment is defined by “no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person.”[33] The definition may be satisfied by different patterns of employment pursuant to different employment contracts.[34]
In the present case, it is unnecessary to determine whether Mr Hasen’s casual employment with the respondent persisted in the periods between his separate, ad hoc engagements.[35] I am satisfied and I find that Mr Hasen accepted an engagement to perform at least six days’ work for the respondent between 15 January and 20 January 2024 at the Australian Open pursuant to a roster issued by the respondent on 12 January 2024. While there is no evidence that the parties entered into a written employment contract, it is understood that the security services were performed by Mr Hasen pursuant to a framework established by the Act, other relevant legislation and the relevant modern award, being the Security Award.
The respondent issued polo shirts to the security officers employed by it to perform work at the Australian Open. The parties agree that Mr Hasen, like other security guards, was to return the polo shirt upon the completion of the event (and not at the end of each shift). The evidence before the Commission demonstrates, and I am satisfied, that Mr Hasen was unable to perform his shifts in the absence of an event polo shirt.
There is no evidence before the Commission from Mr Rehlon in relation to his 17 January 2024 discussion with Mr Hasen. Mr Gupta, the respondent’s Managing Director, acknowledged that he does not know the exact conversation between Mr Rehlon and Mr Hasen on this date.[36] It follows that the only direct evidence in relation to the relevant discussion between Mr Rehlon and Mr Hasen on 17 January 2024 is that of Mr Hasen.
I am satisfied on the evidence available to be tested in the Commission that Mr Rehlon asked Mr Hasen to return his event polo shirt on 17 January 2024, as Mr Hasen contends. I note that the respondent’s submissions do not challenge that this request was made. This is in distinction to the accreditation card, which I accept that Mr Hasen returned of his own accord.
As a consequence of the request by his employer to return his event polo shirt, Mr Hasen was thereafter unable to perform further shifts at the event (absent being issued with a fresh shirt). I am therefore satisfied that Mr Rehlon’s action in requesting that Mr Hasen return his event polo shirt was the principal contributing factor which brought the employment of Mr Hasen to an end on 17 January 2024. While Mr Hasen returned the accreditation card to Mr Rehlon at the same time, I accept Mr Hasen’s unchallenged evidence that he did so because he no longer had any use for it.[37]
I therefore do not accept the respondent’s submission that Mr Hasen did not perform his 17 January 2024 shift by mutual agreement. The evidence establishes that Mr Hasen was asked whether or not he was “happy,” and when Mr Hasen advised that he was not, he was asked to return his polo shirt. The fact that Mr Hasen did not challenge this instruction from Mr Rehlon is immaterial. Further, while the respondent submits that Mr Rehlon “would have” asked Mr Hasen whether he wanted to work or not, there is no evidence from Mr Rehlon before the Commission to attest to any other statements that were made.[38]
I also do not accept that Mr Rehlon’s request for the return of Mr Hasen’s polo shirt was only because the shirts were in short supply and would be required for Mr Hasen’s substitute that day. First, there is no evidence from Mr Rehlon that he intended to redistribute Mr Hasen’s uniform for that day only. Second, if Mr Rehlon anticipated the return of Mr Hasen to work the following day, it is not apparent why Mr Hasen would be required to return his uniform for another employee to wear it for a single shift. Third, there is no evidence of Mr Rehlon or any respondent representative advising Mr Hasen that he would be reissued with a polo shirt for the next day’s work. Put simply, Mr Hasen was instructed to return his polo shirt without any indication that it would be returned, and he could not work at the event without it.
I have considered the respondent’s contention that the operation coordinator contacted Mr Hasen on the afternoon of 17 January 2024 to confirm the following day’s shift, and that Mr Hasen chose to cease contact with the respondent by advising the employee not to call him again. However, it does not alter my conclusion that it was the respondent’s action which brought Mr Hasen’s employment to an end. I accept Mr Hasen’s evidence that by the time he received this telephone call, he held the clear view that his employment had already been terminated by Mr Rehlon and that the caller did not know about the events of that morning. Indeed, the respondent’s position is that the call from the operation coordinator was part of its usual processes, and “nobody in the company knew about the discussions that morning.”[39] Relevantly, having advised the operation coordinator of his dismissal, there is no evidence that Mr Rehlon attempted to call Mr Hasen to clarify or resolve Mr Hasen’s concern that his employment had been terminated.
In these circumstances, the respondent’s contention that it did not advise Mr Hasen that he was dismissed, does not alter my conclusion. The effect of the respondent’s conduct was sufficient to conclude Mr Hasen’s engagement at the Australian Open and thereby, his employment with the respondent to perform at least six days’ work at that event.
I accept that Mr Hasen remains an active profile on the respondent’s Guardhouse application. As a casual, Mr Hasen remains on the respondent’s “books” and consistent with this, was one of many persons the respondent invited to perform shifts at the Grand Prix. However, this does not demonstrate, in my view, that Mr Hasen’s employment was ongoing between 17 January 2024 and the date of this invitation on 12 February 2024. It was instead a fresh offer to advise of availability to accept casual shifts at a future event. This future offer of potential employment does not bear upon the respondent’s 17 January 2024 conduct, which had the effect of bringing to a conclusion Mr Hasen’s January 2024 engagement to work at the Australian Open. It was a dismissal event at the respondent’s initiative within the meaning of s 386(1)(a) of the Act.
Conclusion and disposition
I find that Mr Hasen has been dismissed within the meaning of s 386(1)(a) of the Act. Accordingly, at the time that Mr Hasen lodged his general protections application with the Commission, Mr Hasen was a person who “has been dismissed” for the purposes of s 365 of the Act.
The respondent’s jurisdictional objection is dismissed. The matter will proceed to a conciliation conference in accordance with s 368 of the Act at the date and time to be advised to the parties.
DEPUTY PRESIDENT
Appearances:
Mr S Hasen, on his own behalf
Mr I Gupta, for the respondent
Hearing details:
2024.
Melbourne:
May 3.
[1] Digital Court Book (DCB) 26
[2] Transcript PN289
[3] Transcript PN124-P126, PN196-PN200
[4] Digital court book (DCB) 8 at [3.1]
[5] Form F8 filed by Mr Hasen, 6 February 2024
[6] DCB 26
[7] Transcript PN128
[8] DCB 26
[9] Submissions filed by Mr Hasen, 3 May 2024
[10] Submissions filed by Mr Hasen, 3 May 2024 and submissions filed by the respondent, 3 May 2024
[11] Transcript PN133
[12] DCB 15
[13] Form F8 filed by Mr Hasen, 6 February 2024
[14] Transcript PN90, PN97, see also PN211, PN218, PN222
[15] Transcript PN102-PN110
[16] Transcript PN113
[17] Transcript PN205-PN206
[18] Transcript PN210
[19] Transcript PN139-143
[20] Transcript PN168, PN298
[21] DCB 14
[22] Transcript PN336-PN337
[23] Fair Work Act 2009 (Cth), s 365
[24] DCB 13
[25] DCB 26
[26] Transcript PN166
[27] DCB 26
[28] Transcript PN289
[29] DCB 26
[30] Transcript PN289-PN292
[31] Transcript PN305
[32] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625, 62 IR 200 at 205, 206; Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [50]; cf NSW Trains v Mr Todd James[2022] FWCFB 55; 316 IR 1 at [45] which concluded that s 386(1)(a) means termination of the employment relationship and/or the contract of employment. In this respect see Shane John Varichak v COG Regional Team Pty Ltd[2022] FWCFB 37 at [33]
[33] Fair Work Act 2009 (Cth) s 15A(1)(a); see also, WorkPac Pty Ltd v Rossato [2021] HCA 23
[34] Four yearly review of modern awards [2017] FWCFB 3541 at [85]
[35] See the discussion in Marena Fathalla v Gallawah Pty Ltd [2023] FWC 2524 at [106]-[109] and the cases cited therein
[36] Transcript PN295
[37] Transcript PN219, PN223-PN224
[38] Transcript PN333
[39] Transcript PN334
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