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[2023] FWC 1375
General information, not legal advice.
Fair Work Commission
2023-06-14
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - security and risk officer - roster change - whether resigned - whether resignation forced - no resignation found - no dismissal - application dismissed
[1] On 17 March 2023 Gursharan Singh (Mr Singh or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy against Certis Security Australia (Certis Security, the respondent or the employer).
[2] Mr Singh claims to have been dismissed by forced resignation on 14 March 2023 effective from 10 March 2023. He claims that his alleged dismissal was unfair. He seeks compensation.
[3] Certis Security oppose the application and raise a jurisdictional issue. It says that Mr Singh was neither dismissed nor resigned and in the alternative that, if he did resign, was not forced to do so. In the further alternative, Certis Security say that the circumstances of the alleged dismissal were not unfair.
[4] Conciliation was conducted on 18 April 2023. The matter did not resolve.
[5] I issued directions on 9 May 2023 and listed the matter for jurisdictional hearing.
[6] Mr Singh was self-represented. On 17 May 2023 I refused a request by Certis Security to be legally represented.[1] I provided a measure of assistance to both parties to present their cases and test that of the other side.
[7] On 19 May 2023 I refused a request by Mr Singh for production orders on the respondent and on a third party, finding that the documents sought related to merit rather jurisdiction.
[8] Materials were filed by Mr Singh and Certis Security.
[9] I heard the jurisdictional matter (allegedly no dismissal) by video on 8 June 2023.
[10] I received evidence (oral and written) from four persons:
[11] Though largely agreed, some facts are in dispute.
[12] All witnesses gave evidence conscientiously. None lacked credit. Mr Singh was willing to make concessions as to events or conversations that occurred even though they were not necessarily of advantage to his case. Both Mr Harms and Mr Mykytyschyn were considered witnesses with reasonable recall and not evasive in cross examination. The factual differences largely concern matters of detail where evidence was given three months after relevant events. In that context, differences in recall is not unsurprising.
[13] To the extent required, and without necessarily preferring the evidence of one witness over the other, in resolving factual disputes I apply standard tools available to first-instance decision-makers including creditworthiness, plausibility and consistency with the documentary record.
[15] Certis Security provides security and risk assessment services as part of Business Risks International Pty Ltd. It contracts with clients to provide those services including at commercial premises such as shopping centres. One such client is Westfield (the Scentre Group).
[16] Mr Singh is an overseas student completing full time tertiary study at the University of South Australia.
[18] Throughout his employment Mr Singh was located at the Westfield Tea Tree Plaza shopping centre in suburban Adelaide.
[19] On account of his tertiary studies Mr Singh was not generally available to work on weekdays except during term breaks.
[20] Consequently, Mr Singh was regularly rostered to work two night shifts on weekends, commencing on Friday and Saturday evenings.
[21] Together with limited overtime, this would commonly see Mr Singh working abut 20 hours per week, well above his minimum contracted hours. Occasionally during term breaks, Mr Singh's hours of work rose to around 30 per week.
[22] However, other than in term breaks, Mr Singh generally only worked weekend night shifts.
[23] This was the pattern of work until Mr Singh went on extended annual leave after completing a shift across 31 December 2022/1 January 2023.
[24] Mr Singh was on annual leave (including approved leave) from 4 January 2023 to 9 March 2023 and travelled to India.
[25] At the time of going on leave and immediately prior, Mr Singh reported to Mr Mykytyschyn. It was Mr Mykytyschyn who had approved his leave. Whilst Mr Singh was on leave, Mr Mykytyschyn rostered another security officer, Mr Williams, to cover the weekend night shifts that had been worked by Mr Singh.
[26] At the Tea Tree Plaza site, Mr Mykytyschyn rostered security officers on a fortnightly basis. He provided advance notice of rosters, rostered staff around leave and attempted to accommodate specific instances of availability, unavailability and preferences.
[27] Aware that Mr Singh was on leave in India but taking into account that the roster upon his return needed to be settled, in mid-February 2023 Mr Mykytyschyn communicated with Mr Singh via facebook.
"Mr Mykytyschyn: I've just thought of a plan that might also help with your study so your (sic) not overwhelmed and stressed.
As mention (sic) you have placement coming up. I know some placements may take up weeks or most days of the week. So what I thought of as I've been thinking since yesterday, we could put you on some shifts in the morning so it frees up your days. The car park situation is still ongoing so that could be an option so you have the rest of the day to study. I can also put you on some admin shifts during the week and fill in days of leave where/if it suits you. Could also look at going casual for a higher rate as well as another option.
As I know it's your last semester of uni and it will be full on, I want you to do well and get everything completed for uni.
The situation I face at the moment, Justin has requested night shifts as it suits his lifestyle better with his partner working during the day and he needs to look after the kids during the day. Hence why I am re-doing the roster"
But I can't do till next 3 months. I requested number of times, not everytime got approved. I got refused even Thursday shift when requested.
Weekend is best for me to work, there is no uni placement on weekend.
Even I'm unsure if I will do any work on week days."
I will then have a new roster for you which I was going to speak with you when you got back. The new roster was going to include day shifts to be more involved with the team.
"Mr Singh: No I need weekend day shifts. I can't do week days.
Also, pls remove all cp shifts, I rather prefer to take days off. I'm arriving afternoon of 10th.
All guards have equal rights regardless of their seniority.
Many guards joined after me and doing more hrs than me. I never complained."
Mr Mykytyschyn: I will look into it and get back to you"
[33] Given the dispute, Mr Mykytyschyn sought advice from the South Australian Client Services Manager Mr Harms.
[34] Mr Harms and Mr Mykytyschyn spoke to the State Manager Mr Koh. South Australian management raised the issue with a national human resources officer (who reported to Mr Shaw) and was advised that Certis Security had a right under the employment contract and award to change Mr Singh's roster as proposed.
[35] On 27 February 2023, at the request of Mr Koh and with the knowledge and support of Mr Mykytyschyn, Mr Harms telephoned Mr Singh (who was still overseas) to discuss the roster dispute and advise Mr Singh that the company would be placing him on a different roster. The call was short. Mr Singh indicated that he preferred to speak to Mr Mykytyschyn or Mr Koh about the matter. Mr Harms indicated that he would be sending Mr Singh details of the roster change. During the discussion and when pressed for a reason, Mr Harms made general reference to performance concerns but did not elaborate.
[37] The new rostered hours advised were 21.5 per week being Tuesday 2pm to 11pm; Thursday 5pm to 10pm and Friday 4pm to 11.30pm.
Peter has just advised me that I haven't performed well during night shifts. I believe he might have taken feedback from workplace."
[39] Mr Singh returned from overseas on 10 March 2023 as his annual leave had concluded on 9 March.
[40] Being required to deal with this issue whilst overseas and on leave caused Mr Singh stress and resulted in the final weeks of his leave being interrupted and unpleasant.
[41] Mr Singh was rostered to work immediately following his return during the day on 10, 11 and 12 March (Friday, Saturday and Sunday), and to commence the new roster from 14 March.
[43] Mr Mykytyschyn discussed alternatives with Mr Singh. This included an alternative suggested by Mr Mykytyschyn of working a roster at another shopping centre (at West Lakes or at Gawler). Mr Singh did not wish to work at another shopping centre and did not agree to being removed from his former rostered work at Tea Tree Plaza unless and until the performance allegations had been directly raised with him and dealt with.
[44] Upon being informed of the impasse, Mr Koh convened a meeting for 14 March 2023.
[46] Prior to the meeting with Mr Singh on 14 March, South Australian management spoke to Westfield Tea Tree Plaza management about Mr Singh.
[47] The 14 March meeting was attended by Mr Singh, Mr Koh, Mr Harms, Mr Mykytyschyn and another Certis Security supervisor.
[48] Mr Singh, believing that he had been removed from his former weekend night shifts and placed onto a new roster because of unspecified performance concerns, stated that he wanted those performance concerns discussed and dealt with before he would discuss the new roster.
[49] Mr Singh was told that the performance concerns were a separate issue and that the meeting was called to discuss the roster.
[51] Consistent with what Mr Singh had said by text message to Mr Mykytyschyn on 23 February 2023, Mr Singh stated that he would have to resign if he was required to work the new roster before his studies concluded in June 2023. Mr Singh indicated that he may be able to work the new roster after June 2023 but would not do so beforehand.
[52] The employer stated that it was within its rights to require Mr Singh to work the new roster.
[53] The meeting concluded with Mr Koh indicating that Mr Singh would be given one or two weeks to consider his position further. Mr Koh indicated that during this period Mr Singh would not be required to work the new fortnight roster which Mr Mykytyschyn had posted on 13 March.
[54] The meeting concluded on the basis that it would reconvene in two weeks' time to hear Mr Singh's considered response and intention.
[55] On 17 March 2023 Mr Singh downloaded a copy of an unfair dismissal application and populated it by hand. He sent it that day.
[56] In his application Mr Singh stated that he was notified of dismissal on 14 March 2023 and that the dismissal took effect on 10 March 2023.
[57] Certis Security first became aware of the unfair dismissal application and the assertion of dismissal when advised by the Commission.
[59] On 20 March Mr Singh sent Mr Harms a medical certificate dated 6 March 2023 stating that he was unfit for work from 27 February 2023 to 13 March 2023.
[61] In light of the unfair dismissal application, Mr Koh did not reconvene the meeting to discuss the roster as he had intended. The issue was left to be dealt with by Mr Harms and, at a national level, by Mr Shaw.
[62] On 30 March 2023 Mr Shaw sent Mr Singh a letter requiring him to work shifts as directed.
[63] On 14 April 2023 a disciplinary meeting occurred with Mr Singh on account of his alleged failure to work shifts as directed.
[64] On 14 April 2023, after that disciplinary meeting, Mr Shaw sent Mr Singh a letter advising that he had been terminated effective immediately for failing to comply with a lawful and reasonable direction.
[65] Mr Singh submits that he resigned on 14 March 2023 effective 10 March 2023 when his request to not work the new roster and to be returned to his former weekend night shift roster was not agreed and when he did not in fact work that roster.
[66] Mr Singh submits that he was forced to do so because of conduct or a course of conduct engaged in by Certis Security, and thus was dismissed within the meaning of s 386(1)(b) of the FW Act.
[67] Mr Singh submits that he was forced to resign because:
[68] Accordingly, Mr Singh submits that his application is within jurisdiction.
[69] Certis Security submit that Mr Singh was not dismissed on its initiative nor did he resign on 10 March or 14 March as alleged. It submits that no conduct by Mr Singh on or around 14 March 2023 was conduct that constituted a resignation. Certis Security submit that Mr Singh continued to be employed by it in the days and weeks that followed.
[70] Certis Security submit that Mr Singh continued to be its employee until 14 April 2023 when it terminated his employment for cause.
[71] Certis Security submit that the termination of employment on 14 April 2023 is not the subject of this proceeding and that events occurring after the date Mr Singh claims to have been dismissed and filed his application are irrelevant to the jurisdictional issue.
[72] In the alternative, Certis Security submit that if Mr Singh resigned as alleged, he was not forced to resign. It submits that its conduct was reasonable in the circumstances.
[73] Thus Certis Security submit that Mr Singh was not dismissed within the meaning of the FW Act on 10 or 14 March 2023 or at all.
[74] Aside from the issue of whether Mr Singh was dismissed as alleged, the other jurisdictional pre-requisites for a valid unfair dismissal application are not in dispute. I am satisfied that Mr Singh was a person protected from unfair dismissal (s 382 FW Act).
[75] A person has not been unfairly dismissed unless, amongst other matters, they have been dismissed (s 385(a)) FW Act).
[76] I now turn to consider whether Mr Singh was dismissed as alleged.
[77] Sections 385(a) and 394 require a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish that as fact.[23] "Dismissal" for these purposes (and other purposes of the FW Act) is defined in s 386(1). It provides:
(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."
[78] A full bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli set out the background to s 386:[24]
"[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a "forced" resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the "termination at the initiative of the employer" formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
"1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that "The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd" (footnotes omitted). The body of pre-FW Act decisions concerning "forced" resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust." (footnotes omitted)
[79] Termination at the initiative of an employer within the meaning of s 386(1)(a) of the FW Act arises where the action of the employer is the principal contributing factor leading to the termination of the employment relationship.[25]
[80] It is not contended and nor do I find that Mr Singh's employment was terminated on 14 March 2023 effective 10 March 2023 at the employer's initiative. Leaving aside whether the employer's conduct was reasonable, its notification of a roster change did not bring the employment relationship to an end. Mr Singh was not employed to work a particular or set roster such that a change to that roster by the employer in and of itself terminated the employment relationship.
[81] Further, the termination at the employer's initiative that is said to have occurred on 14 April 2023 is not the subject of this application. It is irrelevant to the consideration of this matter.
[82] Whether an employee has resigned from their employment is a question of fact. It is well established that, like termination on an employer's initiative, a resignation must be clear and unequivocal given the significant consequence of it bringing an employment relationship to an end.
[83] Did Mr Singh resign on 14 March 2023 effective 10 March 2023?
[84] For the following reasons he did not do so.
[85] Firstly, Mr Singh threatened to resign but did not in fact resign. At its highest, the evidence establishes that Mr Singh foreshadowed (and in that sense, threatened) to resign if the employer continued to press its demand that he work the new roster. A threat to end one's employment by resignation is different to conduct actually ending that employment. Mr Singh neither by word nor deed brought his employment to an end. On 14 March 2023 he maintained his earlier threat (made to Mr Mykytyschyn on 23 February 2023) to resign if the employer did not back down. He did not carry through with that threat.
[86] Secondly, the evidence clearly establishes that the employment relationship between Mr Singh and Certis Security continued beyond the meeting of 14 March. It is not in dispute that that meeting concluded on the basis of Mr Koh's intimation that the parties would reconvene in one to two weeks after Mr Singh considered his position further and on Mr Koh's further intimation that Mr Singh would not be required to work the new roster during that intervening period. There is no evidence that Mr Singh said or did anything once the meeting concluded on this understood basis that brought the employment relationship to an end. The fact that during the week following Mr Harms spoke to Mr Singh about a further alternative roster in the Adelaide city centre to try and break the impasse and that Mr Singh did not accept the suggestion is further evidence that a continuing employment relationship existed.
[87] In summary, there is no evidence that permits a finding to be objectively made that Mr Singh resigned or notified his resignation on or around 14 March 2023. All of the evidence points in the other direction, that Mr Singh was employed between 10 March 2023 and 14 March 2023 and remained so employed in the days immediately thereafter.
[91] Mr Singh did not resign from his employment on or around 14 March 2023 effective to 10 March 2023 as alleged.
[92] Having found that Mr Singh did not resign from his employment the question whether he was forced to resign does not arise.
[93] There is no utility in considering whether the conduct of the employer was such that it objectively forced a resignation given that the jurisdictional fact of resignation has not been established.
[94] I have not found that Mr Singh's employment was terminated by Certis Security at its initiative on or about 14 March 2023 within the meaning of s 386(1)(a) of the FW Act.
[95] I have not found that Mr Singh resigned from his employment on or about 14 March 2023 effective 10 March 2023. Given this, there was not and could not have been a forced resignation within the meaning of s 386(1)(b).
[96] I have found that Mr Singh was employed by the respondent at the time he made this unfair dismissal application. He had not resigned nor had he been dismissed.
[97] Accordingly, as Mr Singh was not dismissed as alleged his unfair dismissal application fails for want of jurisdiction.
[98] There being no jurisdiction, the application must be dismissed.
[99] I make one final observation. Given the above, I have not made any finding as to the reasonableness of the new roster required of Mr Singh on his return from annual leave nor the reasonableness of the conduct of the employer or Mr Singh relating thereto except as necessary to decide this jurisdictional matter. Nor have I made any finding as to whether performance concerns existed or whether any such concerns had objective merit.
Mr G Shaw of and on behalf of Certis Security Australia
[1] Email 'Chambers - Anderson DP' 17 May 2023
[2] A1 Statement of Mr Singh 16 May 2023; A2 Statement and Submission of Mr Singh 24 April 2023; A3 Statement in Reply of Mr Singh 31 May 2023
[3] R4 Statement of Mr Harms 24 May 2023
[4] R5 Statement of Daniel Mykytyschyn 24 May 2023 (at the time of giving evidence Mr Mykytyschyn was employed as Risk and Security Manager)
[7] R2 Employment Contract 26 April 2022 Clause 1
[10] Security Services Industry Award 2020
[23] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54]
[25] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200
[28] Hardacre v Highway Enterprises Pty Ltd t/as Taings Noodles [2023] FWC 1053, [105], [147]
Printed by authority of the Commonwealth Government Printer
Gursharan Singh
Certis Security Australia [2023] FWC 1375
(1995) 62 IR 200