Shan Ali v Toll In2 Store - [2010] FWA 7426

[2010] FWA 7426

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shan Ali
v
Toll In2 Store
(U2010/9293)

COMMISSIONER BISSETT

MELBOURNE, 24 SEPTEMBER 2010

Application for unfair dismissal remedy.

[1] This is an application by Mr Shan Ali (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) for a remedy against his dismissal.

[2] Mr Ali was employed by Toll In2 Store (Toll, the Respondent). He commenced his employment on 8 September 2008. His employment was terminated on 21 May 2010. At the time of the termination of his employment Mr Ali worked as a team leader.

[3] The matter was referred for conciliation where it was not resolved. It was subsequently referred for arbitration.

Background

[4] On Friday 14 May Mr Ali verbally raised issues with the conduct and language of Mr Mark Popallis with Mr Popallis’ manager (Darko). Mr Ali believes Mr Popallis got upset that he, Mr Ali, had made such a complaint about him. Mr Popallis then approached Mr Ali’s shift manager (Mr Paul Motta) and complained about Mr Ali. Mr Motta told Mr Popallis that he should put such a complaint in writing. 1

[5] Mr Popallis did put the complaint in writing but it was not seen by the Operations Manager (Mr Mark Jones) until later in the day after Mr Ali had finished work and gone home. Mr Ali was not advised on 14 May 2010 that a written complaint had been put in against him.

[6] On Saturday 15 May 2010 Mr Ali commenced work at 6.00am. Very soon after commencing work he asked Darko if he was aware that Mr Popallis had submitted a complaint against Mr Ali. Darko responded that he wasn’t sure. At this point Mr Ali said words to the effect that ‘if that’s how he wants to play the game... I will play it too because I will clear my name no matter what it takes.’ 2

[7] It is this event on 15 May 2010 that led to the termination of Mr Ali’s employment.

[8] Mr Popallis apparently heard of the comments made by Mr Ali and lodged a further verbal complaint with management. 3

[9] On Tuesday 18 May 2010 Mr Ali was called into a meeting with his shift manager (Mr Motta) and Mr Matthew Smith. 4 At this meeting Mr Ali was informed of an allegation against him which related to what he had said on the Saturday and was stood down.5 Mr Ali agrees that he was told at this meeting that a complaint had been made against him and that he was being stood down (on pay) while it was being investigated.6

[10] On Thursday 20 May 2010 Mr Ali had a further meeting with management. He was asked about the events on Saturday 15 May 2010 and advised of the content of statements made by staff who had witnessed those events. 7 These statements indicated that Mr Ali had sworn and/or threatened Mr Popallis.8 Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FWA 7426
Decision Date: 24 SEPTEMBER 2010

CaseChat Overview and Summary

Shan Ali filed an application for unfair dismissal remedy against Toll In2 Store in the Federal Circuit and Family Court of Australia. Ali alleged that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. Toll In2 Store argued that the dismissal was lawful, based on the grounds of misconduct and poor performance.

The court was required to determine whether Ali's dismissal was unfair under the Fair Work Act. This involved assessing whether the dismissal was procedurally fair, whether it was based on valid reasons, and whether it was proportionate to the circumstances. The court examined the evidence provided by both parties, including witness testimonies, company policies, and the specific incidents leading to the dismissal.

The court found that the dismissal was procedurally unfair, as Toll In2 Store failed to provide Ali with a fair opportunity to respond to the allegations against him. Additionally, the court determined that the reasons provided for the dismissal were not valid, as they were not supported by sufficient evidence. The court concluded that the dismissal was disproportionate, given that Ali had no prior disciplinary record and the issues raised were not of a serious nature. Based on these findings, the court ruled in favour of Ali, finding that the dismissal was indeed unfair.

The court ordered that Ali be reinstated to his former position and that Toll In2 Store compensate him for the loss of wages and benefits resulting from the unfair dismissal. The court also ordered Toll In2 Store to provide a written apology to Ali and to take steps to ensure that similar issues do not arise in the future.

Orders