Umer Khan v Who Bathroom Warehouse Pty Ltd

[2018] FWC 3440

[2018] FWC 3440

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Umer Khan
v
Who Bathroom Warehouse Pty Ltd
(U2018/2254)

COMMISSIONER SIMPSON BRISBANE, 12 JUNE 2018

Application for an unfair dismissal remedy – Dismissal complied with Small Business Fair Dismissal Code – Application dismissed.

[1] This matter concerns an application under section 394 of the Fair Work Act 2009 (the Act) by Mr Umer Khan who alleges that the termination of his employment with Who Bathroom Warehouse Pty Ltd (WBW) was unfair.

[2] Mr Khan commenced employment at WBW on 19 June 2012 and was employed as a casual retail sales assistant with warehouse duties until his employment ended on 20 February 2018, a period of approximately five years and eight months. Mr Khan was at all times employed on a casual basis. He said he was usually employed for 50 hours a fortnight but worked on Saturdays when required.

Jurisdictional Objection - Small Business Fair DismissalCode

[3] WBW raised a jurisdictional objection on the basis that it is a small business and Mr Khan engaged in behaviour that constituted serious misconduct.

[4] Section 23 of the Act prescribes:

“A national system employer is a small business employerat a particular time if the employer employs fewer than 15 employees at that time”.

[5] WBW states that it employed a total of eight employees. Mr Khan disputes the total amount of employees employed by WBW and submitted there were ten. Either way it is not disputed WBW had fewer than 15 employees and on that basis WBW is a ‘small business employer’ for the purposes of an unfair dismissal application and pursuant to section 388 of the Act and therefore the Small Business Fair Dismissal Code applies.

[6] A notice of listing was issued by the Fair Work Commission (the Commission) Unfair Dismissal Team for the matter to be heard in Brisbane on 6 June 2018. In the course of a telephone mention on 28 May 2018, WBW advised that bringing its witnesses to Brisbane would impact on the ability of the business to operate on the day. Mr Khan objected to witnesses giving evidence by telephone. Given that the nature of the factual disputes went to the credit of witness evidence, particularly concerning an alleged assault the day before Mr Khan’s termination, I determined evidence should be given in person. I decided however to move the location of the matter to the Southport Magistrates Court in an attempt to reduce the impact of the hearing on the WBW’s ability to continue to trade.

[7] At the commencement of proceedings at 10am on 6 June, after taking into account the views of the parties I determined to conduct the matter as a determinative conference.

[8] The Small Business Fair Dismissal Code provides:

“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”

[9] It would only be considered fair for WBW to dismiss Mr Khan without warning or notice if it believed on reasonable grounds that Mr Khan’s conduct was sufficiently serious to justify immediate dismissal.

[10] Mr Khan was the only witness to give evidence in his case. He relied on submissions filed, an initial unsigned statement of five paragraphs, 1 an unsigned statement of four paragraphs in response to a statement of Mr Hargraves,2 an unsigned statement of six paragraphs in response to a statement of Mr Waugh,3 an unsigned statement of 14 paragraphs in response to a statement of Mr Glenn Powell,4 and a further four page unsigned statement in response to Mr Glenn Powell and submissions of WBW.5 Mr Khan also provided a copy of an email dated 20 February 2018 advising him of his termination, and copies of payslips.

[11] WBW called four witnesses Mr Glenn Powell, Mr Hargraves, Mr Tivinan and Mr Waugh. WBW also relied upon an unsigned statement of Mr Glenn Powell of 19 paragraphs with 11 attachments, 6 an unsigned statement of Mr Hargraves of five paragraphs,7 an unsigned statement of Mr Waugh of five paragraphs,8 and oral evidence of Mr Tivinan. WBW also provided a three page written submission.

Background

[12] Important background in this matter, which is largely not in contest is a decision made by WBW not to advise Mr Khan of the real reason for his dismissal at the time of termination. Mr Khan was dismissed by email on the morning of 20 February 2018. The email dismissing him read as follows:

“Dear Muno

Due to restructuring of our Sales personal (sic) in both our Varsity and Tweed Warehouses, we unfortunately have to advise you that your services are no longer required effective immediately.

We thank your (sic) for your efforts in the past and wish you well in the future.

Yours Faithfully

Brian Tivinan”

[13] Both at the mention hearing and in the course of the determinative conference Mr Powell for WBW explained the background to this email. Mr Powell said that Mr Khan had some years earlier requested he only be employed in connection with one of the two stores operated by WBW on the Gold Coast being the Tweed Store, and as a result WBW engaged another casual employee to work in connection with the Varsity store.

[14] This is consistent with WBW’s earlier submission that in early 2015 Mr Khan requested that he not be rostered on more than three days a week and never on Saturday as he worked as a real estate agent on Saturdays and was unavailable. It was said he also requested that he not be rostered on at the Varsity store because he did not get along with the store manager. It was submitted as a result of this WBW was forced to employ another casual to fill this void. Mr Khan disputed WBW’s alleged reason for Mr Khan not wanting to work at Varsity, and claimed the reason he asked not to work was because of a physical altercation between Mr Powell and a customer at the Store.

[15] Prior to an incident that occurred on 19 February 2018 involving Mr Khan and Mr Hargraves, Mr Powell said WBW learned that the other casual employee engaged because of the arrangement made with Mr Khan had tendered their resignation.

[16] According to Mr Powell, the departure of the other casual employee meant that WBW would replace both Mr Khan’s role and the other casual role with one permanent employee, and the email sent to Mr Khan on 20 February 2018 was consistent with this intention. However Mr Powell described the incident of 19 February which is dealt with below, as “forcing the hand” of WBW to terminate Mr Khan.

[17] When I later asked Mr Powell directly whether Mr Khan would have been terminated had the incident between Mr Hargraves and Mr Khan not occurred on 19 February 2018 he answered no, and he accepted he would probably have hired another casual. Without going into the matter in detail it was apparent from the evidence that an earlier alluded to jurisdictional issue around genuine redundancy would not apply on the facts of this case as the facts could not satisfy the elements of s.389.

[18] It was clear from the evidence that the incident of 19 February 2018 was the reason WBW decided to terminate Mr Khan. Mr Powell’s evidence and explanation was to the effect that the reason WBW decided not to advise Mr Khan directly of the real reason for his termination was that WBW did not wish to make it difficult for him to gain other employment in the future.

[19] Whilst WBW did not put its case in these terms, it is clear to me that WBW relied upon a range of other alleged prior misconduct on the part of Mr Khan for the purpose of proving to the Commission that it had reasonable grounds to accept Mr Hargraves’ version of the incident on 19 February 2018 given Mr Khan’s history, without further investigation of the matter by seeking Mr Khan’s version of the incident.

[20] At this point it is appropriate to make a number of observations. Under the Small Business Fair Dismissal Code (the Code) in cases involving summary dismissal, the Commission does not have to make a finding whether the alleged conduct occurred but instead whether the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal. 9 Because WBW is a small business employer, it is not necessary for the Commission to determine whether the employer was correct in the belief to satisfy the Code.10

[21] For an employer to believe on reasonable grounds that the conduct of the employee was serious enough to justify immediate dismissal, the employer must establish that they did in fact hold the belief that the conduct was by the employee, was serious, and justified immediate dismissal. 11

[22] Mr Khan submitted he was not given any warning that his position at WBW was in jeopardy and the reason he was given for his termination was in the email that made no reference to his conduct or performance, and only referred to restructuring.

[23] Mr Khan indicated that he did not engage in misconduct. He said he found it unjust for a loyal worker who achieved significant and steady sales over a period of 5 years and eight months and helped generate wealth and offered great service to the company to be informed by email about his dismissal on a day he was rostered off, and the following days rostered to be on leave.

Various allegations made against Mr Khan prior to 19 February 2018

Allegation of performing other work for real estate business whilst at work for WBW

[24] Mr Khan confirmed that whilst working for WBW he also had a separate business of his own in doing contract work with a local real estate business.

[25] WBW submitted that Mr Khan was warned not to use the store computers to browse the internet, read the German newspapers or conduct his real estate sales activities. It was said despite these warnings Mr Khan continued to regularly do so. It was said this also included Mr Khan printing hundreds of brochures to distribute to his real estate customers.

[26] Mr Waugh claimed on many occasions Mr Khan would conduct his real estate sales and associated real estate business during working hours at WBW via phone, as well as printing on the work colour printer and sending emails.

[27] Mr Hargraves also gave evidence that Mr Khan used his time working at WBW to facilitate his real estate dealings, often phoning clients or emailing contracts back and forth. He said whenever Mr Khan sold a property he would spend most of the next day at work engaging in communications about the sale of the property.

[28] Mr Khan said he had never been warned or notified in writing not to use the store computer. He said he had used the computer to read news, and for his real estate job he can use his iPhone and does not need the computer. He denied printing hundreds of brochures and using them for his real estate business. Mr Khan claimed that Mr Waugh conducted private calls on many occasions related to his own business, and this was tolerated in the business.

Alleged changing of quotes from other staff into his own name

[29] Mr Powell said Mr Khan had been warned multiple times about fraudulently altering sales records to show himself as the salesperson that made the sale. He referred to the statement of Mr Waugh. It was submitted that on at least five occasions Mr Khan had been advised by his store manager and the operations manager that he was not permitted to falsify sales records in such a way. Mr Powell accepted he was relying on what he had been told by Mr Bellamy, Mr Waugh and Mr Tivinan and did not have direct knowledge of this.

[30] Mr Waugh claimed Mr Khan was constantly changing details on sales and quotes from the original sales persons to himself. Mr Waugh said he had to instruct him on many occasions not to do so but despite this, Mr Khan continued.

[31] Mr Hargraves said he often noticed his quotes being altered into Mr Khan’s name if Mr Hargraves was not working on the day the customer returned to purchase. He said the last time this happened he queried Mr Khan on why he changed Mr Hargraves’ name to his own and Mr Khan flew into a fit of rage, screaming and ranting at Mr Hargraves. This pertains to the incident of 19 February dealt with in more detail below.

[32] Mr Hargraves accepted employees did not receive commission but the employer would follow who is making sales and a person missing out on sales would look as if they are doing fewer sales than they are.

[33] Mr Khan challenged the characterisation of this issue as fraud. Mr Khan said a staff member could put his name into a quote if the staff member who initially provided the quote was not at work when a customer returned at a later time after the initial quote. Mr Powell said the custom in the business was that the name of the staff member who makes a quotation remains on the sale. He said whether the quote is converted to a sale or not is irrelevant, and the person who initially has contact with a customer is to remain as the customer contact. He repeated that Mr Khan had been told on a number of occasions not to change the name of the staff member as the customer contact but despite this Mr Khan continued to do it. He claimed Mr Bellamy, Mr Tivinan and Mr Waugh had all told Mr Khan not to do this.

[34] Mr Khan claimed only Mr Waugh had told him not to do this. Mr Waugh’s statement said he had to instruct Mr Khan not to do this on many occasions. Mr Khan claimed after Mr Waugh told him not to he never did it again. Mr Tivinan gave oral evidence that Mr Waugh had told him of Mr Khan changing quotes on two occasions.

[35] In his written evidence Mr Khan said there was only two times where he had changed details on a quote and that Mr Hargraves’ claims concerning what occurred on 19 February about the changed quote were false. Mr Khan said changing a quote is not fraud. He said he did not take money and it was just a system. Mr Powell countered that Mr Khan had changed the documents to put forward himself as the salesperson when he wasn’t.

Alleged Sleeping at work

[36] Mr Hargraves said that on several occasions he found Mr Khan sleeping on the work bench out the back. Mr Hargraves said he generally made a loud noise to wake him. He said on one occasion whilst he was using the bench to assemble a vanity he came into the showroom to see Mr Khan sleeping across several display toilet suites. He said this was never in Mr Khan’s lunch break.

[37] When Mr Hargraves gave his oral evidence he asked to show the Commission and Mr Khan two photos of Mr Khan which he alleged showed Mr Khan sleeping at work. He showed the photos to Mr Khan. He said the photos were taken between July and December 2017. He was unable to produce a hard copy of the photos as he said they were on an old phone without a sim card in it.

[38] Mr Khan said there was one incident where he had fallen asleep but he had “knocked off”. Mr Khan’s evidence on this point appeared somewhat evasive. In regard to the photos Mr Khan said he had been sick at work on one occasion. Mr Khan said he had also caught Mr Hargraves sleeping at work.

Dispute over projected rostered hours

[39] Whilst the issue seems fairly peripheral to the matters at hand there was a dispute between the parties about the length of time Mr Khan’s projected rostered ran for after his termination. Mr Khan asserted he believed it was for a period of eight weeks. Mr Powell characterised this as an example of Mr Khan not being truthful.

[40] Mr Khan said when he was dismissed he was rostered to work the whole following week due to a staff member being on leave, and his roster showed work for the next eight weeks.

[41] Mr Powell said that Mr Khan was not rostered for eight weeks (at the time of termination) and referred to a letter dated 10 May 2018 signed by Brian Tivinan, the Operations Manager of WBW who stated that it is generally his preference to set rosters two weeks in advance and at no time does he ever set rosters as far out as eight weeks as claimed by Mr Khan. Mr Tivinan gave oral evidence and said the Mr Khan’s claim is not correct and he does not roster beyond two weeks. Whilst little turns on the point I am inclined to accept the evidence of Mr Tivinan on the point.

Alleged work performance generally

[42] Mr Khan in his material referred to his positive contribution to the performance of the business over his period of employment. Mr Powell said Mr Khan’s claim that he had increased sales at the rates he claimed were untrue, and provided a document setting out Mr Khan’s sales performance from 2012 to 2018. Mr Powell submitted this issue goes to show he does not have the information he claimed to have. The evidence does not support Mr Khan’s claims about his contribution to sales.

Incorrect employment date and allegation concerning long service leave

[43] Mr Powell also pointed to the originating application of Mr Khan claiming he commenced employment on 6 June 2011, and claiming in the body of the application that his dismissal was connected to WBW not wanting to pay long service leave, but when it was pointed out that he was not entitled to long service leave (as he commenced in 2012) he changed the reason for his dismissal.

[44] Mr Khan claimed he put the wrong commencement date because Mr Waugh had told him he was coming up to seven years and he did not have any documents to go back and check his commencement date.

Alleged history of aggression prior to 19 February 2018

[45] Mr Powell, in his evidence said that Mr Khan has a history of violent threatening behaviour toward customers and staff and he referred to Mr Waugh’s evidence regarding Mr Khan’s conduct prior to 19 February 2018.

[46] Mr Hargraves gave evidence of an occasion while serving a couple of elderly ladies, when a customer came in with a problem. He claimed Mr Khan was talking to the customer, who wasn’t happy, and the conversation quickly escalated into a screaming match. Mr Hargraves said he tried to signal to Mr Khan to just go out the back but his face was red and he was not going to stop. Mr Hargraves said he found the incident embarrassing. He said this was at the old shop about two and half years ago. He said it occurred only metres from where Mr Hargraves was trying to sell products to the other customers. He said after Mr Khan went to the back of the shop he came back and started yelling again. Mr Khan said he did not know where Mr Hargraves got this from as he did not work closely with Mr Hargraves.

[47] It was submitted by WBW that Mr Khan had previously been warned to kerb his temper after he allegedly abused a passing motorist for cutting him off as he entered the carpark to the store. Mr Khan denied this allegation.

[48] WBW submitted that Mr Khan was warned by Mr Waugh when a verbal argument ensued with a customer in store. It was submitted that it required several interjections from the store manager to ensure Mr Khan walked away from the situation. Mr Waugh gave evidence that on several occasions he was required to intervene to settle Mr Khan down for arguing with customers in the store. Mr Khan said he did not agree that there were any situations where Mr Waugh had to intervene to stop him arguing with customers and this statement was false.

[49] It was submitted that Mr Khan had previously been warned when he threatened a customer over the telephone by saying “you better come in and pay, I know where you live”. It was said this was a serious incident and the police were called to attend the store.

[50] Mr Waugh referred in his evidence to this alleged incident where he claimed Mr Khan had made a mistake of charging a customer $15.00 instead of $115.00. Mr Waugh claimed Mr Khan called the customer on the telephone requesting the customer come in to the store and pay the correct amount. When the customer refused Mr Khan threatened the customer, scaring the customer to the point of having them ring the police. Mr Waugh claimed this resulted in getting a visit from a police detective the following day which he said he sorted out with no further actions, apart from the money lost.

[51] Mr Khan said he never spoke to any police. Mr Powell said Mr Khan was not present when the police visited. Mr Khan said he could remember, probably two years ago when he made a mistake and offered to repay the company. He said he did not have a recollection about an issue involving $115. Mr Khan said he may have said to a customer “I know where you live”. He said he could not really recall the situation but did not think it was a threat.

[52] Mr Khan gave written evidence about an incident where he made a mistake where he charged $6 dollars instead of $66 dollars. He said Mr Waugh told him to ring back and the client said that they would not pay over the phone and come in to pay. Mr Waugh said WBW had never had a $60 toilet seat in the shop. He said the incident was about three to four years ago.

Incident of 19 February 2018

[53] Mr Powell claimed Mr Khan assaulted a fellow employee, Mr Peter Hargraves, on 19 February 2018 the day before his dismissal, when Mr Hargraves confronted him for altering sales records into his name so he would appear as the sales person. Mr Powell claimed Mr Khan started ranting incoherently and was literally screaming in Mr Hargraves face, being only an inch from his nose.

[54] Mr Powell accepted that he did not witness the incident, and that Mr Tivinan had spoken to Mr Hargraves about the incident. Mr Powell’s evidence was that he believed the incident got to a point where Mr Khan’s anger was causing Mr Hargraves to fear for his own personal safety and led Mr Hargraves to gently push Mr Khan out of his personal space. Mr Khan then responded by shoving Mr Hargraves in the chest in an aggressive, and very forceful manner. Whilst it is clear Mr Powell’s claims were hearsay, he referred to the email sent from Mr Peter Hargraves the morning after the incident dated 20 February 2018.

[55] Mr Powell said he believed that Mr Khan assaulted Mr Hargreaves. He said Mr Khan was dismissed the next day when he was advised via email on 20 February 2018 that his services would no longer be required.

[56] Mr Tivinan said he received a phone call from Mr Hargraves immediately after the incident and Mr Hargraves was very upset. He said Mr Hargraves claimed he had been assaulted and gave Mr Tivinan an account of the incident with Mr Khan that was consistent with his subsequent statement. Mr Tivinan said he told Mr Hargraves to let the manager of the Varsity store know and he would sort it out the next day.

[57] Mr Hargraves’ statement said that on 19 February 2018 he asked Mr Khan why he changed quoted sales to his own name. Mr Hargraves claimed that Mr Khan abruptly and without warning, started yelling that Brian Tivinan had told him to change the customers into his name. Mr Hargraves said Mr Khan started ranting incoherently and screaming in his face, literally an inch from his nose. Mr Hargraves said Mr Khan’s anger escalated quickly to the point where Mr Hargraves said he feared for his personal safety.

[58] Mr Hargraves said at that stage, with Mr Khan’s face screaming in his own, he gently pushed Mr Khan away saying “step back a few steps Muno”, when he claimed Mr Khan shoved him in the chest in an aggressive and very forceful way. Mr Hargraves said instead of retaliating, he thought it more prudent to take the high road and leave the situation. He said he rang Mr Tivinan to report the incident who suggested he put the details in writing. The email Mr Hargraves sent the morning after the incident read as follows:

“Good morning.

Yesterday morning, 19/02/18, I asked Muno why he changed quoted sales into his name. Muno abruptly, without warning, started yelling that Brian had told him to change the customers into his name. He started ranting incoherently and screaming in my face, literally an inch from my nose. His anger escalated quickly to the point where I was fearing for my personal safety. At this stage, with his face in mine still screaming, I gently pushed him away saying “step back a few steps, Muno” when he shoved me in the chest in an aggressive and very forceful way. Instead of retaliating, I thought it more prudent to take the high road and leave the situation. I rang Brian to report the incident who suggested I put the details in writing.

Also, Tony informed me that Doug requested Muno’s email: [email address redacted]

This is a true and accurate account of the incident.

Kind Regards

Peter Hargreaves [sic]”

[59] Mr Khan in his statement said it is not correct that he abruptly, without warning started yelling at Mr Hargraves, and it is not correct that he told him that Brian Tivinan told him to do it. Mr Khan claimed that he tried to give an explanation to why he changed it to his name, but Mr Hargraves did not listen at all and kept calling him a thief. Mr Khan said they both got into an argument and Mr Khan said he was standing in front of Mr Hargraves when Mr Hargraves pushed him quite hard with his hand into his chest and Mr Khan claimed that he had to make sure he did not fall backwards. Mr Khan claimed that was when he pushed Mr Hargraves away from him as he did not want to be hit again and he walked away.

[60] Mr Khan claimed the push from his side was not aggressive or forceful as stated by Mr Hargraves and it was more to protect himself from Mr Hargraves getting aggressive and yelling at him and calling him a thief. In his oral evidence Mr Khan said he stood by his statement.

[61] He also said in a reply statement that after he stored his lunch in the fridge that morning Mr Hargraves said to him words to the effect that his parents had brought him up not to steal, and then referred to the changed quote. Mr Khan claimed Mr Hargraves accused him of being a thief, and his parents had not done a good job of bringing him up.

[62] Mr Khan claimed that the customer connected to the quote Mr Hargraves raised with him, called the shop and mentioned that he had a quote and after talking to the customer Mr Khan said he discovered that Mr Hargraves had quoted the wrong item. Mr Khan claimed he told the customer that if they came into the store he would quote the correct items which he said he did, and that is why he changed the quote. Mr Khan said he tried to explain this to Mr Hargraves but he kept yelling at him. He said Mr Hargraves stood in front of him and pushed him and he tried to protect himself and pushed Mr Hargraves back, and his push was not aggressive or forceful.

[63] Mr Hargraves’ oral evidence was clear and consistent with his email written on the day after the incident. He repeated that when he objected to the issue over the changing of the quote Mr Khan immediately got very angry and started yelling and screaming and came within an inch of his face and smashed him in the chest with his open palm. He said he went out the back and called Brian Tivinan and explained what happened.

[64] Mr Hargraves said the relevant customer came into the shop on the Saturday and had the invoice with them to pick up the goods and that is when he found out about the invoice being changed. Mr Hargraves said when he pulled the invoice up on the computer he saw Mr Khan’s name on it. It was put to Mr Hargraves that the items on the invoice were different as the customer had come in and Mr Khan had changed the order. Mr Hargraves said this was not true and the items quoted were exactly the same as what was purchased.

[65] Mr Hargraves claimed he said to Mr Khan words to the effect of I was not brought up to steal so why did you change the quote/sales. Mr Khan put to Mr Hargraves that he called Mr Khan a thief. Mr Hargraves denied this, and responded that he said words to the effect of I don’t understand why you change sales. Mr Hargraves said Mr Khan was screaming with his face close to Mr Hargraves’.

Conclusion

[66] In closing Mr Khan said he felt the dismissal was unprofessional and if he was such a bad employee WBW should have told him. He said it would have been enough for him had the employer contacted him and said they had decided because of several incidents they were not happy with him and were going to dismiss him. It appeared much of the issue for Mr Khan was the manner in which the dismissal was effected. He also maintained that Mr Hargraves started the incident on 19 February.

[67] Mr Khan asked Mr Powell during his evidence why he was not given an opportunity to respond to the allegation of Mr Hargraves. Mr Powell said that given what had transpired in the past and that Mr Khan was casual he did not think he needed to, or was obliged to go through warnings. Mr Powell said it had reached the point where Mr Khan’s employment was no longer tenable and they could not put up with it any longer.

[68] Mr Powell put in closing that it is difficult to attract staff. He said WBW had not put off any staff before in ten years of business, and that over the life of Mr Khan’s employment WBW had overlooked prior issues but enough was enough.

[69] It was apparent to me that Mr Powell was somewhat frustrated at having to divert time and resources from his business in responding to an unfair dismissal application made by a casual employee who he clearly regarded as having been given a fair go but whose employment had become “no longer tenable”. However the legislation is clear that for a small business employer once a casual employee who works on a regular and systematic basis has been engaged for 12 months they are entitled to bring an application to challenge their dismissal and to have that challenge heard and determined.

[70] It was notable that when Mr Khan was given the opportunity to challenge Mr Hargraves about his version of the incident on 19 February when Mr Hargraves was giving his evidence, Mr Hargraves was resolute in his version of the incident and Mr Khan did not make a vigorous attempt to challenge Mr Hargraves’ version of the physical element of the exchange except to put to Mr Hargraves that he pushed Mr Khan first. Mr Hargraves’ evidence was consistent in asserting that Mr Khan aggressively invaded his personal space, was screaming at him and also aggressively shoved Mr Hargraves when Mr Hargraves attempted to gently push Mr Khan away from his personal space.

[71] Whilst I have set out above that satisfaction of the Code does not require making a finding that the conduct occurred, I was left in little doubt having observed the nature of the exchange between Mr Khan and Mr Hargraves when Mr Khan had an opportunity to challenge Mr Hargraves that Mr Hargraves version of the incident is more likely to be accurate.

[72] Each of the four witnesses who gave evidence for WBW were generally consistent and tended to corroborate each other’s evidence regarding Mr Khan’s conduct prior to the incident of 19 February 2018. Mr Glenn Powell, who was the key decision maker in conjunction with Mr Doug Powell, gave credible evidence as to why he said he believed the allegations of assault made by Mr Hargraves against Mr Khan.

[73] Mr Khan’s evidence tended to be less consistent on a few points, and changed on a number of issues throughout the matter which tends to operate in favour of WBW. I have concluded that on balance, where there has been a conflict between the evidence of Mr Khan and that of the witnesses of WBW about Mr Khan’s conduct prior to 19 February, I am inclined to favour the evidence of the witnesses for WBW. On that basis I am satisfied it is likely Mr Khan had been given warnings about aggressive conduct on a number of occasions prior to 19 February 2018. This tends to favour a finding that Mr Powell accepting Mr Hargraves claims was reasonable. It is also another reason which tends to favour acceptance of Mr Hargraves evidence over Mr Khan.

[74] Mr Tivinan confirmed in his oral evidence that he did not explain the real reason for the dismissal to Mr Khan. He said he did speak to Mr Khan the day after he was dismissed. Mr Tivinan said if it was left to him, he probably would have spoken to Mr Khan about his conduct but he still would have dismissed him. He said he believed Mr Powell did not want to create an issue for Mr Khan for his future employment.

[75] It would have been far better had WBW put the allegations made by Mr Hargraves directly to Mr Khan and given him the opportunity to respond before dismissing him. Whilst it is clear that would not have changed WBW’s decision it may well have prevented Mr Khan bringing this application. According to Mr Khan, how the dismissal was effected appears just as important, if not more important to him than the actual reason for the dismissal.

[76] Circumstances where employees have been dismissed by employers by email in the absence of some reasonable explanation for doing so has been the subject of criticism in a number of recent decisions of the Commission. This case involves not only a termination by email, but also a termination where the real reason for termination was not communicated for the reasons explained above. The course adopted by WBW in that regard has clearly made the whole situation worse and was clearly a misjudgement. If an employee is to be dismissed for serious misconduct it should be done in person, and the reasons clearly explained in the absence of some extenuating circumstances to prevent that from happening.

[77] Despite the clear flaw in how the dismissal was handled by WBW, I have considered all of the evidence and I am satisfied that WBW did believe that the conduct of Mr Khan (relying on Mr Hargraves’ allegations) was serious, justified immediate dismissal and was based on reasonable grounds given the evidence concerning Mr Khan’s prior conduct. The dismissal was therefore consistent with the Small Business Fair Dismissal Code, and as such the jurisdictional objection is upheld.

[78] Even if I were to be wrong about that, and it were to be the case that the failure to give Mr Khan an opportunity to respond to the allegations meant the belief at the relevant time was not a reasonable belief, I would still be satisfied given my conclusions about the evidence that had the matter proceeded to be considered taking into account all of the matters in s.387, the facts of this case would still be highly unlikely to produce a conclusion that the dismissal was unfair.

[79] The application is dismissed.

COMMISSIONER

 1   Exhibit 1.

 2   Exhibit 2.

 3   Exhibit 3.

 4   Exhibit 4.

 5   Exhibit 5.

 6   Exhibit 6.

 7   Exhibit 7.

 8   Exhibit 8.

 9   Steri-Flow Filtration (Aust) Pty Ltd v Erskine[2013] FWAFB 1943.

 10  Pinawin v Domingo (2012) 219 IR 128.

 11   Harley v Rosecrest Asset Pty Ltd T/A Can Do International[2011] FWA 3922 para [8]; Pinawin v Domingo (2012) 219 IR 128 para [28]-[29].

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