Umer Khattak v Your Discount Chemist

[2015] FWC 7509

[2015] FWC 7509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Umer Khattak
v
Your Discount Chemist
(U2015/6462)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 14 DECEMBER 2015

Application for relief from unfair dismissal - valid reason found - dismissal not unfair - application dismissed.

[1] Mr Umer Khattak has applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against his former employer, Your Discount Chemist (YDC).

The hearing

[2] This matter was heard on 29 October 2015. Mr Khattak represented himself. YDC was represented by its sole director, 1 Mr Fawaz Khodary.

[3] Mr Khattak tendered:

● his originating Form F2 – Unfair Dismissal Application; 2 and

● a bundle of three emails from himself to Mr Khodary. 3

[4] YDC tendered:

● its Form F3 – Employer Response to Unfair Dismissal Application; 4

● the witness statement of Ms Sandy King, 5 a retail manager at YDC’s Lighthouse pharmacy, which is where Mr Khattak worked immediately before his dismissal; and

● the witness statement of Ms Krystal Stephens, 6 who is currently a retail manager at YDC’s Port Macquarie pharmacy but was employed as a dispensary technician at that pharmacy when Mr Khattak worked there.

[5] Mr Khattak, Mr Khodary, Ms King and Ms Stephens all gave evidence and were all cross-examined.

The facts

[6] Mr Khattak started working for YDC in August 2010. 7 YDC operates several retail pharmacies in regional New South Wales, mainly on the mid-north coast. Mr Khattak first worked for YDC as the pharmacist-in-charge at its pharmacy in Laurieton.8 His employment there was terminated around May 2014, following the second time he returned from leave significantly later than expected, without notifying YDC.9

[7] In about June 2014, Mr Khattak was offered employment as a pharmacist at YDC’s Port Macquarie pharmacy under the supervision of Mr Khodary’s brother, Mr Ibrahim Khodary. 10 Initially, this was offered until Christmas 2014, but he continued to work there beyond the Christmas period. He then commenced as the pharmacist-in-charge at YDC’s Lighthouse pharmacy in March 2015 when the previous pharmacist-in-charge went on parental leave.11

[8] I find that during Mr Khattak’s employment, Mr Khodary held two meetings with Mr Khattak, at which he brought YDC’s concerns about various aspects of his performance and conduct to the latter’s attention. The evidence on when these meetings occurred was not entirely satisfactory, 12 but I am satisfied that the concerns raised included the fact that customers had complained about not receiving their medication promptly and not receiving the correct medication when it was eventually dispensed.13 Mr Khattak did not deny that those meetings occurred, but disputed the scope of the issues discussed.14 On Mr Khattak’s own evidence, however, Mr Ibrahim Khodary gave him more than one verbal warning about being too slow in dispensing prescriptions while he was working at the Port Macquarie pharmacy.15

[9] On 16 June 2015, Mr Khodary held a meeting with Mr Khattak to notify him that his employment at YDC would cease on 30 June 2015. While Mr Khodary’s evidence was that he also bore in mind Mr Khattak’s conduct at the Laurieton and Port Macquarie pharmacies in deciding to terminate his employment at the Lighthouse pharmacy, 16 I am satisfied that the primary reasons that YDC dismissed the applicant related specifically to his period of employment at the Lighthouse pharmacy. In particular, Mr Khodary gave the following concerns at the meeting on 16 June 2015:

● that Mr Khattak was too slow and frequently made errors when dispensing prescriptions; and

● that he frequently took and made calls on his personal mobile phone during working hours. 17

Slowness and errors in dispensing prescriptions

[10] Ms King gave evidence of six customers who had complained about receiving incorrect medication in the three months Mr Khattak worked at the Lighthouse pharmacy. 18 She stated that she was worried about this and had advised the other staff to check the medication he had dispensed before handing it to customers.19

[11] Mr Khodary stated that in that same period, he received seven or eight complaints about Mr Khattak’s slowness or inaccuracy. 20 He gave evidence that in his experience as director, he would expect less than one complaint a year to be brought to his attention, as the vast majority would be dealt with to the customer’s satisfaction at the pharmacy level.21 He said that he personally, as well as the staff to whom he had spoken, was very concerned that one of Mr Khattak’s errors would eventually prove fatal:

‘… the girls felt, I felt, we all felt, that he was going to eventually kill someone, one of these - you know, just one mistake too many can inevitably be the wrong mistake and you know, it was just a case where he can't be - I can't have him as a pharmacist in charge.’ 22

[12] Mr Khattak’s evidence was that the errors were due to the fact that the previous pharmacist-in-charge did not do a proper ‘handover’ with him before commencing parental leave, the poor performance and absenteeism of the staff at the Lighthouse pharmacy (in particular, the staff member responsible for preparing Webster medication packs) and a lack of continuity in the staff roster. The emails he tendered 23 were directed at demonstrating that he had brought these issues to Mr Khodary’s attention.24 Mr Khattak contended that YDC dismissed him because he had done so.25

[13] Ms Stephens gave evidence that Mr Khattak made errors when he worked at YDC’s Port Macquarie pharmacy. She gave the specific example of Mr Khattak confusing apo-sertraline (an anti-depressant medication) with apo-sildenafil (an erectile dysfunction medication) at least twice. 26 Mr Khattak denied that one was ever incorrectly dispensed to a customer in place of the other, but appeared to concede that he had picked the wrong medication off the shelf and caught the error before dispensing it.27 I do not consider it necessary to make a finding on whether this particular error was made, but accept that YDC had had concerns about Mr Khattak’s performance before he commenced at the Lighthouse pharmacy.

Using mobile phone for personal calls

[14] Ms King gave evidence that about once a week, Mr Khattak would be away from the Lighthouse pharmacy for half an hour to an hour during working hours. 28 However, she did not state definitively that he was using his mobile phone for personal calls during these times. Mr Khodary gave evidence that Ms King had told him in a meeting that Mr Khattak was ‘always on his phone outside, sitting on the bench’.29

[15] Mr Khattak disputed that his mobile phone use was ever put in issue, whether at the meetings referred to in paragraph [8] above or otherwise. 30

Consideration

[16] It is not in dispute that Mr Khattak is a person protected from unfair dismissal. 31 I am satisfied that he is so protected.

[17] Section 385 of the Act provides:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[18] Section 385(a) of the Act is satisfied. It is not in dispute that Mr Khattak has been dismissed.

[19] Section 385(c) of the Act does not apply in this case, as YDC is not a small business. 32

[20] Section 385(d) of the Act is satisfied. Neither party submitted that Mr Khattak was made redundant.

[21] Therefore, to determine whether Mr Khattak was unfairly dismissed, I must determine whether the dismissal was harsh, unjust or unreasonable. This requires consideration of the criteria in s.387 of the Act:

‘387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.’

Valid reason: s.387(a)

[22] I consider that Mr Khattak’s slowness and inaccuracy in dispensing prescriptions were valid reasons for his dismissal. I accept Mr Khodary and Ms King’s evidence that YDC’s Lighthouse pharmacy received an atypically high number of complaints following Mr Khattak’s commencement there. 33 I further accept that the pharmacists who preceded Mr Khattak in his various roles with YDC did not struggle to keep pace with YDC’s expectations.34 While I find that Mr Khattak did use his mobile phone excessively for personal reasons during working hours, I need not determine whether that, in isolation, constituted a valid reason.

[23] I do not accept Mr Khattak’s submission that YDC dismissed him because he had raised concerns about other staff at the Lighthouse pharmacy.

Notification of that reason and opportunity to respond: ss.387(b) and (c)

[24] I do not accept Mr Khattak’s evidence 35 that the 16 June 2015 meeting was the first time he was made aware of YDC’s concerns about slowness and customer complaints. Given the extent of the concerns voiced by of the other witnesses, it is more likely than not that YDC had raised the issues that eventually precipitated his dismissal before that time. Mr Khattak was given a chance to respond by improving his performance.

Unreasonable refusal of support person: s.387(d)

[25] There was no evidence to suggest that YDC unreasonably refused to allow Mr Khattak to have a support person at any of the meetings discussed above. Mr Khattak did not put this in issue.

Warnings about unsatisfactory performance: s.387(e)

[26] As indicated above, I accept Mr Khodary’s evidence that he held at least two meetings with Mr Khattak at which the latter’s performance was put in issue. Indeed, Mr Khattak did not dispute that the meetings took place. Further, Mr Khattak himself gave evidence that Mr Ibrahim Khodary had commented that he was dispensing prescriptions too slowly. While YDC might have done better to keep records of the meetings, or provide written warnings, I am nonetheless satisfied that Mr Khattak was made aware of YDC’s concerns about his performance well before he was notified of his dismissal.

Size of employer’s enterprise and absence of human resource management expertise: ss.387(f) and (g)

[27] YDC is a not a small business. It operates 10 retail pharmacies. 36 Neither party specifically tendered evidence to demonstrate whether YDC had human resource management expertise. However, I do note that YDC’s sole director, Mr Khodary, was directly involved in the performance management meetings leading up to Mr Khattak’s dismissal and ultimately the dismissal itself. This suggests it did not. However, I do not consider that the presence or absence of such expertise is a determinative factor in this case.

Other relevant matters: s.387(h)

[28] I do not consider that there are any other relevant matters in this case.

Conclusion

[29] YDC had a valid reason for terminating Mr Khattak’s employment. I consider that Mr Khattak was put on notice in relation to the issues that ultimately led to his dismissal and given an opportunity to improve his performance. He did not avail himself of that opportunity.

[30] Balancing all the factors that s.387 of the Act requires me to take into account, I conclude that Mr Khattak’s dismissal was not harsh, unjust or unreasonable. It therefore was not unfair within the meaning given in s.385 of the Act. His application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

U Khattak in person.

F Khodary for Your Discount Chemist.

Hearing details:

Port Macquarie.

2015.

October 29.

 1   PN170.

 2   Exhibit A1.

 3   Exhibit A2.

 4   Exhibit R1.

 5   Exhibit R2.

 6   Exhibit R3.

 7   Exhibit A1 response to question 1.1; exhibit R1 response to question 1.2.

 8   PN200-PN201.

 9   PN250-PN264.

 10   PN40-PN43, PN212.

 11   PN27, PN780.

 12   It appears one was held in October 2012 and another approximately 18 months before Mr Khattak was dismissed, i.e. around the beginning of 2014: PN189-PN195.

 13   PN188-PN211, PN299-PN311.

 14   PN404, PN414.

 15   PN40-PN45.

 16   PN297, PN334, PN422.

 17   PN184.

 18   Exhibit R2; PN512-PN551, PN604-633.

 19   PN549.

 20   PN230.

 21   PN327-PN333.

 22   PN341.

 23   Exhibit A2.

 24   PN90-PN93.

 25   PN477-PN481.

 26   Exhibit R3; PN739-PN745.

 27   PN60-PN66.

 28   PN552-PN561.

 29   PN236.

 30   PN53-PN54.

 31   Fair Work Act 2009 (Cth) s.382.

 32   Exhibit R1 response to question 1.7; PN389.

 33   PN481, PN578, PN691.

 34   PN321-PN327.

 35   PN37-PN39.

 36   PN276.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR573496>