Fair Work Act 2009_

s.394 - Unfair dismissal

Application for relief from unfair dismissal - whether the dismissal was harsh, unjust or unreasonable - in all the circumstances the dismissal was harsh and in one respect unjust - reinstatement inappropriate - compensation awarded.

[1] This decision concerns an application to the Fair Work Commission (the Commission) by Mr Mesfin Jemal for an unfair dismissal remedy in relation to the termination of his employment by ISS Australia t/a ISS Facility Services (ISS) on 20 December 2013. The application is made under s 394 of the Fair Work Act 2009 (the Act).

[2] Mr Jemal submits that the termination of his employment was harsh, unjust or unreasonable. Mr Jemal is seeking an order for compensation pursuant to s 392 of the Act.

[3] Mr Jemal was employed by ISS as a security guard. Mr Jemal was deployed by ISS to a Coles distribution centre in Truganina, Victoria, at the time he was dismissed. The reasons given by ISS for dismissing Mr Jemal were that he departed the workplace for some twenty-odd minutes without authorisation and was dishonest in explaining the relevant circumstances of this absence from the workplace. The reasons given by ISS will be explored in more detail with reference to the evidence before the Commission in the course of this decision.

[4] The application was first heard on 30 June 2014. The application was further heard on 10 November 2014 and 17 December 2014. The following persons gave evidence at the hearings:

● Mr Tariq Muhammad, Site Supervisor for ISS at the Truganina site;

● Mr Craig Little, Operations Manager, Victoria for ISS; and,

● Ms Simone Kondarovskis, Human Resources Advisor for ISS.

[1] Mr Jemal started his employment with ISS on 3 February 2006. Aspects of Mr Jemal's employment history with ISS are outlined in the witness statement of Ms Kondarovskis. I have had regard to this evidence for the purposes of this decision. I shall return to it in due course.

[2] Certain matters must be taken into account to determine whether the dismissal by ISS of Mr Jemal was harsh, unjust or unreasonable. Section 387 of the Act outlines the matters the Commission must take into account in considering harshness etc, which states:

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."

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):

[3] The reason for the termination of Mr Jemal's employment arises from an incident on 7 December 2013. Mr Jemal was rostered to commence work at 11.30am that day. There is some contradictory evidence about the time of Mr Jamal's arrival at the workplace and the time he commenced duty. For my purposes, I will proceed on the basis that Mr Jemal arrived at the workplace at 11:37am and commenced duty at the location at which he was to perform his duties that day at 12:24pm.

[4] The ISS security service for the Coles site at Truganina is controlled from a gatehouse. On 7 December 2013 Mr Jemal arrived at the gatehouse whereupon his car ran out of petrol. On that day Mr Jemal was not rostered to perform duty at the gatehouse. Rather, Mr Jemal was to perform duties associated with a reception area within the distribution centre.

[5] Because Mr Jemal's car had run out of petrol, Mr Jemal was loaned the personal vehicle of another security guard working at the gatehouse. Mr Jemal used the borrowed vehicle to travel to the reception area. Mr Jemal then left the workplace in the borrowed vehicle, travelled to a nearby petrol station and returned with a can of petrol to refuel his own car. Having done so, Mr Jemal drove his car from the gatehouse to a parking area near the reception area and commenced duty at around 12:24pm.

[6] A Facilities Manager from Coles at the Truganina site noticed Mr Jemal's absence from the reception area sometime between 11:30am and 12:02pm and made enquiries from ISS about this absence. Mr Tariq Muhammad, who was the site supervisor with ISS at the time of these events, was contacted by the Coles Facilities Manager. Mr Muhammad was not on the site at the time. Mr Muhammad then contacted Mr Topcic, ISS Operations Coordinator, and the gatehouse guards. By 1:50pm, ISS had stood Mr Jemal down with pay due to the report from the Coles Facilities Manager.

[7] The matter was subject of an internal investigation by ISS and on 16 December 2013 there was a meeting between Mr Jemal, Ms Kondarovskis, and Mr Little; with Mr Sunil Kemppi attending as a support person for Mr Jemal.

[8] It is convenient to extract from Ms Kondarovskis' witness statement her account of what happened at the meeting on 16 December 2013. Ms Kondarovskis' witness statement describes what happened after she had alleged to Mr Jemal that he had abandoned what she had described as his "post" and left the site without approval on 7 December 2014:

"7. The Applicant stated that he telephoned Stefano (Steve) Corsi on 7 December 2013, on his way to work to advise he may be a bit late due to bad traffic. Mr Corsi was the security officer that the Applicant was due to replace. The Applicant stated that when he arrived at the gatehouse to enter the site, his car ran out of petrol. The Applicant stated he then went to his post at the reception and diverted the phone, then got a car to go and get petrol. The Applicant confirmed that he did not notify the site manager or his supervisor that he was leaving the site, but that the other guards had agreed he should go and get petrol. The Applicant stated that he would make an assessment of a situation and make a decision without contacting the supervisor. The Applicant alleged it was common practice for guards to leave the site during their shift but refused to provide any particulars to allow the allegations to be investigated.

8. The Applicant was stood down with pay while the Respondent conducted further enquiries into the Applicant's responses.

9. On 18 December 2013, I met with Shahbaz Abbasi and Mr Little to discuss the incident on 7 December 2013. Mr Abbasi stated that the Applicant arrived at 11:30ish and his car had no fuel. Mr Abbasi offered the Applicant the use of his vehicle to go and get petrol but expected the Applicant to do so during his break. Mr Abbasi did not know the Applicant was going to get petrol straight away and confirmed his understanding that in a situation where a security officer was leaving the site, Tariq Muhammad, Site Supervisor would have to be contacted for advice.

10. On or about 18 December 2013, I contacted the Applicant's union representative to try to schedule a meeting to provide the outcomes of the investigation. Unfortunately, the union could not attend until 24 December 2013, which did not suit the Respondent and the Applicant was unwilling to meet without the union representative.

11. In light of the circumstances outlined in paragraph 12, on 20 December 2013, I wrote to the Applicant advising that we had concluded the investigation and found that the allegations regarding his abandonment of his post were substantiated. The abandonment of his post without authorisation or significant mitigating factors is a fundamental breach of the role of a security officer, which the Respondent considered to be serious misconduct due to the Applicant's wilful and deliberate behaviour being inconsistent with the continuation of his contract of employment and his conduct caused a serious and imminent risk to the Respondent's reputation with the client. The Applicant's claim that the other security officers thought he should abandon his post to go and get petrol were not supported by the statements of the other security officers. The Applicant was terminated with immediate effect, but paid 4 weeks in lieu of notice. Attached and marked SK2 is a copy of the termination letter to the Applicant."

[9] Notes were taken of the discussion at the meeting by ISS and it is convenient to reproduce them in full for the purposes of this decision:

Purpose: It is alleged that on the 7th of December 2013 you abandoned your post and left the Coles Truganina site without any approval from ISS management.

CL: Can you please explain the events that took place on this date.

MJ: I rang Steve and advised I might be late or on time. There was bad traffic. Arrived at the gate house and ran out of petrol. I diverted phone at reception & got car to go and get petrol.

SK: Did you notify your site manager or supervisor that you were leaving site

SK: So you made a decision to leave site without reporting to your supervisor or following company procedure

MJ: Yes, All the guards agreed that I should go and get petrol.

SK: Are any of the guards your supervisor? Or do any of them have the authority to relieve someone from site?

SK: Why would you not contact the supervisor before leaving site? Would this usually be something you would contact the supervisor for? Or would you usually make these decisions yourself?

MJ: We would assess the situation and make a decision without contacting the supervisor.

CL: These are foot patrols and it is your choice if you use a vehicle to complete these, but a vehicle is not required as they are meant to be conducted as foot patrols.

Mesfin argued that it is common practise for guards to leave site during their shift. We asked if he could refer to who and when has left site but he refused.

CL: We will investigate that matter as it's against company procedure

Meeting closed: We advised we would speak to all involved and come back to Mesfin with an outcome."

[10] Mr Jemal said, in his evidence, that the situation was that the guards at the gatehouse are the control centre for security on the Truganina site and that the loan of the vehicle to him was for him to proceed to obtain petrol and return to fill his own car. Before proceeding, he went to the reception area and diverted the phone through to the gatehouse for continued communication during his absence.

[11] Mr Jemal testified that the guards at the gatehouse understood and accepted he would proceed accordingly.

[12] Mr Jemal's evidence is in conflict with the evidence of Ms Kondarovskis, in particular what she said were Mr Abbasi's expectations, at paragraph 9 of her witness statement, as reproduced above.

[13] Clearly, what Ms Kondarovskis says she was told by Mr Abbasi is in conflict with the evidence of Mr Jemal. Mr Abbasi did not give evidence at the hearing. I therefore have no basis other than the hearsay evidence of Ms Kondarovskis upon which to question the truth or otherwise of Mr Jemal's evidence about the circumstances. As a consequence, Mr Jemal was unable to corroborate his own evidence through cross-examination of Mr Abbasi. I am unaware of any reason why Mr Abbasi did not give evidence.

[14] In the circumstances, I have decided to accept Mr Jemal's evidence. Accordingly, I find that Mr Jemal proceeded to the petrol station on the understanding that the gatehouse guards were aware that he would be temporarily absent from the reception area while filling his car with petrol and on the understanding that he would divert the phone in the reception area. I note, however, that such assent or understanding was not officially theirs to give.

[15] Mr Jemal gave evidence that it was the custom and practice of the guards to use their own vehicles to patrol the site. ISS say that while this was permitted and customary, it was not obligatory. Rather, ISS say that the patrolling function can be performed on foot and that this was the basis upon which such duties were allocated. It seems reasonable to infer that the use of Mr Jemal's car for patrolling purposes would have been within the experience of the gatehouse guards.

[16] I find there was a valid reason for the termination of Mr Jemal's employment. That reason was his departure from the site to find fuel for his car. This left the reception area without a security guard for the period of Mr Jemal's absence.

[17] In addition, I have considered the contention by ISS that Mr Jemal was dishonest during the investigation. I am not satisfied that Mr Jemal was dishonest during the investigation. I have carefully considered the written statements regarding the meeting of 16 December 2013 and the evidence before the Commission in coming to this finding. Contrary to the relevant conclusion reached by ISS, which formed part of the reason for the termination of Mr Jemal's employment, I consider that at the interview on 16 December 2013 the responses given by Mr Jemal to the investigation were open and honest. At the most, it might be said that Ms Kondarovskis' evidence indicates a differing "expectation" of what Mr Jemal would do with the borrowed vehicle when it was provided to him, on the part of Mr Abbasi. Even if what Ms Kondarovskis says was the understanding of Mr Abbasi in this respect and was accepted by the Commission, which I have not, this evidence could only give rise to a finding of a potential misunderstanding between Mr Jemal and Mr Abbasi at the relevant time. I therefore find that the part of the reasons given by ISS for the termination of Mr Jemal's employment in relation to dishonesty during the investigation of the incident on 7 December 2013 does not constitute a valid reason for the termination of the employment of Mr Jemal by ISS.

(b) Whether the person was notified of that reason:

[18] I find that Mr Jemal was notified of the reasons for the termination of his employment, which is the reason stated in the meeting of 16 December 2013.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person:

[19] I find that Mr Jemal was given an opportunity to respond to the allegations which formed the reasons for the termination of his employment. In this respect, I accept the evidence of Ms Kondarovskis, which establishes such an opportunity was provided on 16 December 2013.

(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:

[20] My finding in this respect is somewhat vexed by the relevant circumstances following the meeting on 16 December 2013 at which Mr Jemal was accompanied by a support person. The situation to which I refer is captured in paragraphs 10 and 11 of Ms Kondarovskis' witness statement, as reproduced above.

[21] This raises the question whether the circumstances contributed to an unreasonable refusal by ISS for Mr Jemal to have a support person present at any discussions relating to the dismissal. The answer to the question is finely balanced.

[22] I have decided that as there was in fact no discussion following the meeting of 16 December 2013 I must therefore conclude there was no discussion in respect of which an unreasonable refusal of the relevant kind occurred. However, I consider the circumstances referred to in Ms Kondarovskis' evidence concerning the aborted meeting contemplated by ISS as at 18 December 2013 to be relevant for my consideration of whether the termination of Mr Jemal's employment was harsh, unjust or unreasonable. I will return to those circumstances below.

(e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal:

[23] In this case there might be considered an overlap of Mr Jemal's conduct as described and the issue of the performance of his duties. I shall proceed bearing this ambiguity in mind.

[24] There is no relevant warning before me in the evidence in relation to Mr Jemal having absented himself during working hours in the manner which formed the reason for the dismissal. The relevant provision of s 387(e), it may be noted, refers to "that unsatisfactory performance" (emphasis added). In my view, this formulation requires consideration of the connection between the performance of duties of a kind in respect of which a warning is issued. In this case, the dismissal is not characterised by the employer as performance related, but rather conduct related.

[25] On what is before me there is no relevant connection between "counselling" for lateness said to have occurred previously and Mr Jemal's absence to refuel his car on 7 December 2013.

[26] On the evidence, Mr Jemal was most likely counselled about lateness during his service with ISS at other sites over the more than seven years of his employment with ISS. While lateness was involved with this matter, as a matter of fact, and must be considered, it appears self-evident that Mr Jemal's actions, on the evidence, were characterised as issues of conduct rather than capacity, that is, performance.

[27] As an observation, assuming Mr Jemal was counselled for lateness, and this lateness formed any part of the reason for the termination of his employment, as a performance issue, I do not think this would stand as a valid reason for the termination of employment, notwithstanding the earlier counselling for lateness. What constitutes counselling and a warning and the difference as between these concepts can be blurred. However, in my view, counselling is distinct. Counselling is distinguished in the lexicon of employee relations as a lesser form of discipline than a warning. In my view, the statutory language means something more than counselling. Accordingly, I find while there was counselling about Mr Jemal's timely attendance at work over the more than seven years of employment with ISS, there was no relevant warning in relation to these issues within the meaning of the Act.

(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:

[28] ISS is a large employer. The effect this had on the procedures which were followed in effecting the dismissal was of no negative consequence for Mr Jemal.

(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:

[29] ISS, at the time Mr Jemal's employment was terminated, had dedicated human resources management specialists and expertise. The witness statement of Ms Kondarovski establishes she is a human resources advisor for ISS and was involved in the procedures followed to dismiss Mr Jemal.

(h) Any other matters that the FWC considers relevant:

[30] Mr Jemal submitted that he has been the subject of racial discrimination, due to his African heritage, in his employment with ISS. Mr Jemal is pursuing his legal rights in this respect elsewhere.

[31] Mr Jemal gave some evidence at the hearing on 30 June 2014 that Mr Muhammad and others had referred to him in the Urdu language as a "slave". During the course of the hearing it became apparent that Mr Jemal had substantially conducted his case on the assumption that he had been directed by the Commission in other proceedings, of a jurisdictional nature, not to refer to this alleged reason for the termination of his employment.

[32] Those jurisdictional proceedings were not conducted by the Commission as presently constituted. Upon exploration of the issue, it became clear that Mr Jemal was inadvertently prevented, as a consequence of those proceedings, from putting the case he wished to put in full, and that further preventing him from doing so would cause him to be denied natural justice. This required witnesses to be recalled and further cross-examination. Final submissions in this matter therefore were not filed until 19 December 2014.

[33] The assertion Mr Jemal wished to put before the Commission was that racial discrimination formed part of the reason for the termination of his employment. Central to this submission was the attitude of Mr Muhammad, who has been identified as the Site Supervisor for ISS at the Truganina site. Mr Jemal gave evidence Mr Muhammad had referred to him as "ghulam", which Mr Jemal submitted means "slave" in English. Mr Muhammad gave the following evidence about the use of the word and its meaning in Urdu:

"In (indistinct) "gulam" word has very diversified meaning. I would say "gulam" mean the person who is highly devoted; people use in the religious terms. One of our ex-president, his name was Ghulam Sarwar Khan. It's like, you know (indistinct) and his name is Ghulam (indistinct) he is devoted to his sect. One of our general in my country, his name is Ghulam Mohammad. One of the religious - one sect in the subcontinent, Pakistan and India, there is one sect and the religious leader, he claimed he is a prophet. At that time, his name was Ghulam Mohammad. People use this name. If we go to the demographic names of the people, we can - at least million or half a million people are using this name, so it's really like very much normal name and we (indistinct) other names with the name, starting with "Ghulam". My uncle is Ghulam (indistinct) I don't know in which context you want to explain."

[34] Under cross-examination, Mr Jemal outlined why he understood "ghulam" to mean "slave" in Urdu, as follows:

"Why do you say that you believe that Mr Muhammad referred to you using that term?---The incidents happen like this. I just went outside. No-one helped me; I was by myself. I ask them to just come out and help me. They didn't just help me at all. I just come in. They just use that word "gulam" and then they just - I ask them what is that and then, specially Ajid, was just really making fun out of it, and then I just keep it and then I ask the next person who come, and when I ask him, he says, "Who said it?" "Ajid and Tariq use, but why did they use that word?" and he says that, "No, I don't know, but it's really bad word," and then I went outside and then I ask the Punjabi drivers and then someone who just speak Urdu. He told me that, "Who said that one?" and then I told him, "No-one say it but I want to know," but the meaning is just "slave". I just (indistinct) and then I told him that, "Is that called a slave?" I went inside and asked them, "What's the meaning of that 'gulam'?" They say that, "We don't know; we don't know," and then finally I just ask other people also the words itself because I take the writing from the driver. I went and then I ask other Indian who speaks Urdu. They told me the meaning is "slave". At same time, it is - the situation is here. I just wait outside. I was by myself, just dealing with all the trucks in two weighbridge by myself, writing, weighing and then all that stuff. These two guys didn't do nothing. There isn't any other reason or there is no any other meaning from what I get from the meaning because normally people are just - they just say some bad words also. They just - we use it and we ask then the drivers. They will tell us what exactly it means, so that's how I find it I have been called a slave in Urdu."

[35] I prefer and accept Mr Jemal's evidence on this subject.

[36] I was not convinced by Mr Muhammad's evidence. Particularly the obfuscated explanation of the meaning of the word and his inability or unwillingness to explain how the use of the word was intended to apply to Mr Jemal. Mr Jemal also gave evidence that Mr Muhammad had questioned him about "black magic". I accept Mr Jemal's evidence in relation to these issues. I find that Mr Muhammad expressed attitudes and behaviours that were, expressly and impliedly, demeaning and racially based.

[37] While I consider that Mr Muhammad exhibited attitudes of a demeaning nature towards Mr Jemal, because of his identity as a black African person and a racial identity so ascribed, it is not necessary that I decide if this formed part of the reason or the sole reason for the termination of Mr Jemal's employment. This is so for the following reasons.

[38] First, for reasons explained elsewhere in this decision, I find that the termination of Mr Jemal's employment was an unfair dismissal. Second, the remedies within the Commission's jurisdiction in relation to an unfair dismissal application are restorative in nature. The functions of the Commission in relation to the award of an unfair dismissal remedy do not include the award of damages for humiliation or distress arising from the dismissal or during the employment. Third, the Commission's jurisdiction does not include the imposition of a penalty or an award for exemplary damages when determining a remedy in a case of unfair dismissal.

[39] I consider the length of Mr Jemal's service a relevant consideration. At the time of the dismissal Mr Jemal had been employed by ISS for over seven years. In a contemporary workforce this is a significant period of employment.

[40] I consider the circumstances which led to Mr Jemal's dismissal in relation to the abandonment by ISS of the proposed final meeting to be relevant.

[41] I consider it relevant that part of the reason for the termination of Mr Jemal's employment was alleged dishonesty during the investigation of the incident on 7 December 2013. I note that in coming to the decision to terminate Mr Jemal's employment ISS took into account what it believed was dishonesty by Mr Jemal during the investigation of the incident. This must be considered a substantial reason for the termination of Mr Jemal's employment.

[42] I have also taken into account the economic and personal consequences resulting from the termination of Mr Jemal's employment. Mr Jemal gave evidence at the hearing that following the termination of his employment he began receiving Centrelink benefits and that it was only after about six months following the termination of his employment by ISS that he was able to find work. Mr Jemal has found other employment and gave evidence that the rate of pay at his new job is less than what he was earning at ISS.

Consideration of whether the dismissal was harsh, unjust or unreasonable

[43] I have found that there was a valid reason for the termination of Mr Jemal's employment and that Mr Jemal was notified of the reason and was provided with an opportunity to respond to that reason, albeit perhaps an incomplete opportunity due to the aborted meeting when Mr Jemal requested postponement to enable a support person to be present. That reason was his temporary absence from the workplace to refuel his car.

[44] Had Mr Abbasi given evidence, as suggested by Ms Kondarovskis' witness statement, the issue of what understanding was reached between Mr Jemal and the guards at the gatehouse could have been further explored.

[45] As far as ISS has informed the Commission, there was no impediment to Mr Abbasi giving evidence. In any event, the hearsay evidence of Ms Kondarovskis is of a subjective "expectation" on Mr Abbasi's part, rather than of any discussion or direction in relation to how Mr Jemal would proceed to use the borrowed vehicle.

[46] For my purposes, on the evidence before me, I will proceed on the basis that while the guards at the gatehouse had no official capacity to authorise Mr Jemal's absence, they were aware of, and approving of, Mr Jemal's intentions as he left in the vehicle which a guard had loaned to him.

[47] It happens there is some dispute about the need for the use of personal vehicles for patrolling by the guards. In this respect, I proceed on the basis of my acceptance of Mr Jemal's evidence that this was customarily anticipated by him as the method of patrolling and would be performed according to the established practice of the guards using their own vehicles, which ISS acknowledged was permitted and practiced by the guards at the site. While Mr Jemal could have patrolled on foot, his actions were designed to enable him to use his vehicle for the usual purpose in the customary manner, which was authorised by ISS.

[48] On what is before me, I consider Mr Jemal was not dishonest during the investigation of the incident of 7 December 2013.

[49] It was unfortunate, and I think unfair in the circumstances, that a subsequent meeting was not held with Mr Jemal about the investigation as envisaged on 18 December 2013 by Ms Kondarovskis. The practical delay would have been four working days assuming that it would have been reasonable, from the point of view of ISS, to schedule the meeting on 24 December 2013. Mr Jemal would have been available to address and perhaps challenge the outcome of the investigation before a decision was made to dismiss him. In particular, Mr Jemal would have been able to challenge what Mr Abbasi said subsequent to the meeting of 16 December 2013 and would have had an opportunity to persuade ISS of the honesty of his account.

[50] Mr Jemal had a significant period of service prior to his dismissal. While he had been warned about punctuality previously, it was not his late arrival that formed the operative reason for the dismissal. Although, in an oblique way, it contributed to the time he was absent from the reception area on the site.

[51] The departure from the site, on the evidence I have accepted, was with either the express or implied approval of the guards at the gatehouse. Mr Jemal went to the reception area and diverted the phone through to the gatehouse to cover his absence. The witness statement of Mr Little confirms that the amount of time necessary for Mr Jemal to refuel his car and return to the site and resume his duties, with his own car available for patrolling, was 19 minutes (to depart the reception area after diverting the phone to the gatehouse and return to the gatehouse) and a further 13 minutes to return from the gatehouse and commence duties. It is clear on this evidence that the refuelling was the sole purpose of the absence as testified to by Mr Jemal, which I accept.

[52] While I am satisfied that Mr Jemal should not have so proceeded, the situation did not lead to a security incident of any gravity or any evident effect on the health and safety of other employees. Indeed, I can discern none. I accept that this conduct is to be disapproved of and properly subject to disciplinary procedures. The question is whether, in the circumstances, looked at all around, that disciplinary action should fairly amount to termination of employment.

[53] If Mr Jemal had not had the years of service he did or had conducted a similar offence previously and had been formally warned accordingly, I would consider the circumstances differently. However, at the time of the incident, Mr Jemal had over seven years of service with ISS and had not conducted himself other than in a satisfactory manner, albeit being occasionally late for work.

[54] In the case of Byrne v Australian Airlines Limited (1995) 185 CLR 410 (Byrne) at 465 the High Court of Australia provided the following guidance in relation to what will constitute a harsh, unjust or unreasonable dismissal, which I have considered in making my decision, as follows:

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

[55] In Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 a Full Bench of the then Australian Industrial Relations Commission noted that the above extract from Byrne is:

"...authority for the proposition that a termination of employment may be:

• unjust, because the employee was not guilty of the misconduct on which the employer acted;

• unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or

• harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct."

[1] Section 577 of the Act prescribes the manner of the performance of the Commission's functions and is set out below:

The FWC must perform its functions and exercise its powers in a manner that:

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations."

[2] Section 578 of the Act identifies the matters which the Commission must take into account when performing its functions or exercising powers under the Act and is set out below:

"578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin."

Decision on whether the dismissal was harsh, unjust or unreasonable

[3] After careful consideration I have concluded that the termination of Mr Jemal's employment was in all the circumstances harsh. In the circumstantial context, looked at all round, I consider the termination of Mr Jemal's employment was disproportionate to the gravity of the misconduct in respect of which ISS acted. In addition, on what is before me, the dismissal had significant consequences for Mr Jemal's personal and economic circumstances. In my view, ISS was mistaken in concluding that Mr Jemal was dishonest during the investigation into the incident of 7 December 2013. Given my finding that this conclusion was wrong, it follows that the extent to which this formed a motivation for the decision to terminate the employment of Mr Jemal, I consider it was unjust.

[4] In the case of Parmalat Food Products Pty Ltd v Wililo (2011) 207 IR 243 (Wililo) the Full Bench of the Commission, on appeal, commented upon what may constitute unfair dismissal where there is found to be a valid reason for the termination of an employee's employment, for serious misconduct, and there had been compliance with the procedural fairness provisions of s 387 of the Act.

[5] In coming to that decision, the Full Bench, at paragraph 24 of that decision, said as follows:

"The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open."

[6] I have had regard to that guidance in considering whether the termination of Mr Jemal's employment was harsh.

[7] In doing so, I have given consideration to whether Mr Jemal's temporary absence from the workplace should be characterised as serious misconduct, which is the circumstantial context in which the observations of the Full Bench were made.

[8] I do not consider that, in the individual circumstances of Mr Jemal's case, the action which led to the termination of Mr Jemal's employment should be characterised as serious misconduct. Although, I think generally, the action fits within a broad characterisation as misconduct, of a much lesser order, when looked at all round.

[9] Moreover, it is also worthwhile to note that the extract from Wililo, above, was quoted with approval in a recent decision of a Full Bench of the Commission in the case of Harbour City Ferries Pty Ltd v Toms [2014] FWCFB 6249 (Toms). In the Toms case, Mr Toms smoked marijuana the night before he accepted and undertook a shift of work as a ferry master on Sydney Harbour, contrary to the clear policy direction of the employer in relation to its zero tolerance approach to alcohol and drugs. Mr Toms lost control of the ferry he was piloting due to an error of judgement in manoeuvring the vessel. Mr Toms approached a berthing area of a wharf at high speed and caused an accident, which was a serious incident that endangered the safety of the travelling public.

[10] While fully accepting the generality of the guidance as shown in the extract of Wililo, above, it may be observed that not all valid reasons will be the same or equal. Physical assault, fraud, endangering the public, wilful damage to property by an employee, or gross insubordination, for example, will be valid reasons for the termination of an employee's employment. So too, in certain circumstances, will be poor timekeeping, absenteeism, and various degrees of poor performance. The nature of the valid reason for the termination of the employment of an individual employee's employment will need to be weighed when considering, in the particular factual circumstances of each case, whether the termination of an employee's employment is harsh.

[11] Where a finding of serious misconduct stands as a valid reason and the employee is afforded procedural fairness in accordance with the relevant statutory provisions, it will be much harder, in my view, to arrive at a finding of harshness than if the valid reason of misconduct is found to exist, but of lesser gravity in all the circumstances of the case. Likewise, what will constitute mitigating circumstances and the significance of such mitigating circumstances will need to be weighed against the particulars of the reason for the termination of an employee's employment, where the reason is found to be valid.

[12] In my view, these considerations are reinforced when one considers the finding of the valid reason for the termination of the employee's employment in Wililo. In that matter, the Commission found at first instance as follows:

"[121] I am satisfied that the applicant's actions in raising the tines of the forklift whilst they were not properly engaged and placing his hand and part of his arm under the elevated load cumulatively amount to a valid reason for the termination of his employment. I am also satisfied that the applicant's actions amount to serious misconduct within the definition set out in Regulation 1.07 of the Regulations. The applicant's actions caused serious and imminent risk to his own health and safety if not to that of others."

[13] The letter of termination to the employee in Wililo alleged as follows:

"On 8 May 2010, it was reported that you engaged in an unsafe act by placing your arms, head and shoulders underneath an unstable and elevated load in the Lidcombe Distribution Centre."

[14] In order to fully appreciate the decision of the Full Bench in Wililo and the context in which it was made, it is appropriate to extract more fully from paragraphs 23 to 29 of the text of the decision as follows:

"[23] A consideration of these arguments involves a more detailed consideration of the reasoning of the Commissioner and the various matters dealt with in her decision.

[24] We do not consider that the decision discloses a clear line of reasoning leading to the decision reached. The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. We do not believe that any of the circumstances involved in this matter amount to such factors.

[25] It is not clear to us that in referring to other considerations under s 387(h) the Commissioner was suggesting that these were mitigating factors. If they were so considered we believe she fell into error. The service and disciplinary record of Mr Wililo was not a mitigating factor as his service was short and his disciplinary record was poor. The failure to show Mr Wililo the CCTV footage was not a matter of significance. It was largely inconclusive and could not have altered the conclusion that Mr Wililo had an adequate opportunity to respond to the allegations against him.

[26] Mr Wililo's conduct was found to be serious misconduct. It involved deliberate acts. We consider that characterising the actions as carelessness does not derogate from the seriousness of his action or the possible consequences. Further we do not believe that there was a sufficient basis to find that the employer could not apply its safety standards because of alleged actions in relation to other safety breaches. If it was entitled to take the action in this case the need to enforce its safety rules suggests that the resultant termination is not harsh.

[27] We were also asked to view the CCTV footage to assess the findings of the Commissioner in relation to the events involved. This is a difficult issue but we tend to agree that the footage does not appear to establish the findings of the Commissioner in relation to the footage.

[28] As we have indicated the Commissioner does not say, in terms, that these matters were mitigating factors. It may be that the finding of harshness was based on other grounds not immediately apparent from her reasons, such as the failure of the employer to establish that Mr Wililo placed his head and torso under a forklift load (as distinct from his arm and hand) and the consequent failure of the employer to establish dishonesty to the Commissioner's satisfaction.

[29] Added to this difficulty in discerning the true reasons for her ultimate finding we consider it somewhat anomalous that an employee found guilty of serious misconduct for breaching safety rules, and hence dismissed for a valid reason, after due process, could be considered to be harshly terminated in the absence of discernible and significant mitigating factors. These concerns involve matters of principle and the overall reasonableness of the decision."

[15] I consider that looked at all round there are significant mitigating circumstances, in this case, comprised of: Mr Jemal's over seven years of service with ISS; the loan of the vehicle to obtain petrol with the approval implied, if not the express approval of the guards at the gatehouse (in the absence of Mr Muhammad), the purpose of doing so being to facilitate Mr Jemal's security patrols; and, Mr Jemal's action in diverting the reception area phone through to the gatehouse. In my view, these factors are relevant as mitigating considerations in relation to the misconduct as I have found it. These circumstances are not factually analogous to the circumstances in the cases referred to immediately above.

[16] There are other significant differences present in this matter from those in Wililo and Toms. First, in my view, Mr Jemal's misconduct was not serious misconduct. Nor did the conduct of Mr Jemal cause an imminent or unjustifiable risk to the health and safety of his colleagues, co-workers or members of the public.

[17] My judgement of whether or not the termination of Mr Jemal's employment was harsh is made having regard to those differences. All of the relevant circumstances of the matter, and the consequences of the termination of the employment for Mr Jemal, lead me to conclude that the dismissal was harsh. I have also found that there was no dishonesty on Mr Jemal's part during the investigation of the incident that occurred on 7 December 2013.

[18] In my judgement, in all the circumstances of the case, a fair go all round for an employee with the length of service of Mr Jemal would involve a lesser sanction than termination of employment. A warning or final warning that any repetition of unauthorised absence from work even for a short period could lead to termination of employment, together with a deduction from pay for the period not worked on 7 December 2013, would have been a readily available option, which would not have been harsh.

[19] For all of the above reasons, I judge the termination of Mr Jemal's employment to have been harsh, and to the extent it was based on alleged dishonesty it was unjust, and for those reasons unfair.

[20] I consider reinstatement inappropriate. Mr Jemal and ISS are involved in litigation concerning Mr Jemal's allegation that he has been subject to systemic racial discrimination. I cannot conceive of the employment relationship being effectively re-established in all the circumstances. Mr Jemal clearly holds the view that the racial discrimination he alleges is embedded within ISS. I make no comment or judgement in this regard as the evidence could not justify any such judgement.

[21] I consider an order for compensation is appropriate. The relevant provisions are set out in s 392 of the Act as follows:

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."

[22] Nothing in the evidence or submissions suggests an order of compensation would affect the viability of ISS.

[23] Mr Jemal demonstrated a long period of service, which weighs in favour of the employment horizon being twelve months beyond the date of the termination of his employment by ISS.

[24] I estimate that, for the purposes of this decision, but for the termination of the employment, Mr Jemal would have earned 52 weeks of pay at the rate of remuneration applicable at the time of the termination of his employment. On what is before me, I determine that to be an amount of $1,000 gross per week.

[25] I am satisfied on the evidence that Mr Jemal's efforts at mitigating his losses have been reasonable; however, I note that there was some delay in the commencement of those efforts, which I will take into account.

[26] Mr Jemal earned nothing between the date his employment was terminated and 19 May 2014 due to a lack of employment available to him, despite his best efforts. However, Mr Jemal was paid four weeks pay in lieu of notice.

[27] I am unable to identify any relevant income likely to be earned between the making of the order for compensation and the actual compensation.

[28] The Commission's approach to the determination of an appropriate amount of compensation as a remedy in a case of unfair dismissal follows the procedure adopted in the case of Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21. The approach was refined in Ellawala v Australian Postal Corporation (Print S5109), of which I include a summary as follows:

1. Estimate the remuneration the employee would have received if they had not been dismissed. Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment i.e. the anticipated period of employment.

2. Deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment.

3. Deduct an amount for contingencies. This is a calculation of future economic loss.

4. Consider the impact of taxation and adjust the figure accordingly.

5. Assess the figure against the compensation cap. If the amount is more than the compensation cap it should be reduced to the compensation cap.

[29] In light of Mr Jemal's lengthy service, I am prepared to conclude that he would most likely have remained in the employment of ISS for 12 months.

[30] I calculate that the lost remuneration of Mr Jemal in that time would amount to $52,000.

[31] From this amount I would deduct $4,000, which represents four weeks of pay in lieu of notice. And $3,000 for income from other sources between 20 December 2013 and 16 May 2014. Mr Jemal also earned income from other sources of $22,940 in the period of 17 May 2014 to 20 December 2014 ($740 per week).

[32] I would also deduct an amount of four weeks of pay in consideration of mitigation, as noted above, and a further 25% for misconduct, under s 392(3).

[33] A table of the consequences of my findings for calculation of a remedy are set out as follows:

b) Deduct $4,000 for payment in lieu of notice = $48,000;

c) Deduct $3,000 for income between 20 December 2013 and 16 May 2014 = $45,000;

d) Deduct $22,940 earned between 17 May 2014 and 20 December 2014 ($740 per week) = $22,060

e) Deduct $4,000 in relation to efforts at mitigation = $18,060;

f) Deduct 25% ($4,515) for the misconduct found to have contributed to the decision to terminate the employment = $13,545;

[34] The compensation cap in this matter is $26,000.

[35] I have considered the remedy calculated above in accordance with the requirement to review the remedy overall as set out in the decision of the Full Bench in Smith v Moore Paragon Australia Ltd [2004] AIRC 57; (2004) 130 IR 446 and find it appropriate. In my view, the compensation arrived at is neither excessive nor inadequate.

[36] An order will issue that ISS pay Mr Jemal an amount of $13,545.00 in lieu of reinstatement, less appropriate taxation.

Mr J Moore, for the ISS Security Services Pty Ltd t/a ISS Facility Services.

Printed by authority of the Commonwealth Government Printer

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