s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - valid reason for dismissal relating to employee's conduct - dismissal was not harsh, unjust or unreasonable - application dismissed

• [1] This decision concerns an unfair dismissal application made by Mr Imtiaz Ali Shah Syed pursuant to s.394 of the Fair Work Act 2009 (Cth) ((the Act) against his former employer, paint manufacturer, Hempel (Wattyl) Australia Pty Ltd (Wattyl).

• [2] Mr Syed commenced employment with Wattyl in January 2016, initially as an operator, and later as a team leader, at Wattyl's Granosite production facility. Mr Syed was passionate about his job with Wattyl. In particular, it is clear that Mr Syed took a personal interest in ensuring high quality production in an efficient way.

• [3] In late September 2021 Wattyl made a change to their cleaning procedure. Mr Syed, who has a background as a chemist,[1] did not agree with the procedure introduced by Wattyl because he believed it could impact the quality of the product and was not an efficient use of time. Consequently, Mr Syed refused to perform the cleaning procedure.

• [4] While Wattyl considered Mr Syed's concerns with the cleaning procedure, ultimately it upheld the cleaning procedure, and required Mr Syed to perform the procedure. Mr Syed continued to refuse to perform the procedure.

• [5] Mr Syed was terminated by Wattyl on 17 February 2025 after Mr Syed repeatedly refused to follow Wattyl's direction to perform the cleaning procedure, even after receiving a final warning.

• [6] Having considered the material before me and all the circumstances of this case, ultimately, I have found that Mr Syed was not unfairly dismissed. My reasons for this determination are set out below.

• [7] I heard this matter at a Determinative Conference on 27 May 2025. Mr Syed represented himself (an interpreter was made available for Mr Syed). Ms Josephine Rowe, Senior People Partner, represented Wattyl.

• [8] Mr Syed gave evidence on his own behalf. Wattyl relied on the evidence of Mr Joseph Thenamkodath, Site Manager for Footscray; Ms Rowe; and Ms Dianne Temby, Quality and Business Management System Manager.

• [9] Mr Syed objected to one of the documents Wattyl sought to include in evidence. The relevant document was attached to Ms Rowe's witness statement and was entitled "Interview Statement."[2] The document included Ms Rowe's record of a disciplinary meeting with Mr Syed which occurred on 6 February 2025. Mr Syed objected to the document on the basis that he claimed that the document did not accurately record his answers. Mr Syed claimed "the English which is used in those questions is not mine."[3] When I inquired further into Mr Syed's concern with the Interview Statement, Mr Syed confirmed that he agreed with the "meaning" of the answers in the Interview Statement, but he did not believe he would have used that exact language.[4] I allowed the document into evidence, but have had regard to the fact that Mr Syed may have used different language to express himself.

• [10] Following the hearing Mr Syed wrote to my Chambers stating that he believed parts of Determinative Conference transcript did not accurately record his answers. I asked Mr Syed to identify which parts of the transcript he was concerned with. Mr Syed did not identify any parts of the transcript but again referred to his concern regarding the Interview Statement. In any event, in this decision, my reference to the transcript is primarily to support evidence already included in sworn written witness statements.

• [11] Mr Syed commenced employment with Wattyl in January 2016, as an Operator in the Granosite production area in Footscray. Granosite is a water-based acrylic wall coating.

• [12] In 2021, Wattyl introduced a new cleaning procedure to improve hygiene standards in the Granosite production area - the Granosite Hygiene Standard Operate Procedure (GHSOP). Previously, Wattyl had primarily used a hot water, high pressure washer to clean Granosite production equipment. GHSOP introduced the use of sodium hypochlorite (commonly known as bleach) into the cleaning procedure.

• [13] After issuing the GHSOP, Wattyl conducted training for each of its operators, including Mr Syed. Mr Syed attended refresher training on 6 October 2022 and was found to be competent. Mr Syed also attended further refresher training in early June 2023 but refused to sign off on the assessment.

• [14] In June 2024, Mr Syed was promoted to Acting Team Leader of the Granosite production area.

• [15] On 2 July 2024, Mr Syed was instructed to undertake the cleaning procedure in accordance with the GHSOP. Mr Syed has a background as a chemist, and he had several concerns regarding the use of the sodium hypochlorite in the cleaning procedure. Mr Syed refused to perform the GHSOP, stating he believed that sodium hypochlorite was not necessary to effectively clean the equipment.

• [16] On 4 July 2024, Mr Thenamkodath met with Mr Syed, his union delegate, and a Senior People Partner, to discuss Mr Syed's refusal. Mr Syed raised concerns that he did not believe the GHSOP process was necessary, and that sodium hypochlorite was harmful to the product. Mr Thenamkodath gave evidence that following this meeting he raised Mr Syed's concerns internally with Wattyl's quality function team. The quality function team advised Mr Thenamkodath that sodium hypochlorite did not present a risk to the product. This information was communicated to Mr Syed.[5]

• [17] On 9 July 2024, Mr Syed again did not follow the cleaning procedure in accordance with the GHSOP.

• [18] Later that week, Mr Thenamkodath met with Mr Syed and the union delegate to discuss Mr Syed's refusal. Mr Thenamkodath presented Mr Syed with a draft warning letter to show Mr Syed how seriously Wattyl took this matter. The draft warning letter was not issued. Mr Syed advised that he would follow the instruction in the future.[6]

• [19] On 20 August 2024, Mr Syed was successfully appointed to the permanent role of Team Leader of the Granosite production area.

• [20] On 3 February 2025, Mr Syed made a further refusal to follow the GHSOP's cleaning procedure. Mr Thenamkodath and Ms Rowe commenced a disciplinary process in respect of Mr Syed.

• [21] On 6 February 2025, Mr Syed, his union delegate, Mr Thenamkodath, and Ms Rowe had a meeting in relation to Mr Syed's refusal. At the meeting, Mr Syed reiterated his position that the cleaning process was unnecessary and raised a concern that sodium hypochlorite can affect the colour of the paint produced. The meeting concluded to allow Mr Thenamkodath and Ms Rowe to consider Mr Syed's responses.

• [22] On 11 February 2025, the parties attended a further meeting. Mr Thenamkodath issued a first and final written warning to Mr Syed for his refusal to follow the GHSOP. Mr Syed stated words to the effect that he would continue to refuse to comply with the instruction. Mr Thenamkodath then stood Mr Syed down on pay, pending further consideration of his conduct.

• [23] On 14 February 2025, the parties attended a further meeting. At the meeting, Mr Syed reaffirmed his position that he would not perform the GHSOP procedure in the future.[7] Ms Rowe advised Mr Syed that his employment was at risk if he continued to refuse this instruction and asked if Mr Syed understood.[8] Mr Syed confirmed he did and continued to, in effect, refuse the instruction.[9]

• [24] Mr Thenamkodath then invited Mr Syed to provide any further information regarding his concerns with the GHSOP by the end of the day. Mr Syed provided 8 pages of notes primarily outlining the potential impact sodium hypochlorite may have on products including fabric.

• [25] On 17 February 2025, Mr Thenamkodath, Ms Rowe, Mr Syed and his union delegate attended a final meeting.[10] At this meeting, Mr Thenamkodath issued Mr Syed his termination letter. Wattyl paid Mr Syed five weeks in lieu of notice.

• [26] Mr Syed filed his unfair dismissal remedy application on 20 February 2025.

Was the dismissal harsh, unjust or unreasonable?

• [27] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

• [28] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[11] I set out my consideration of each below.

1. Was there a valid reason for the dismissal related to Syed's capacity or conduct?

• [29] Mr Syed's termination letter states that the reason for dismissal was serious misconduct, in the form of a repeated failure to follow a lawful and reasonable direction.

• [30] Mr Syed submits there was no valid reason for his dismissal.

• [31] Mr Syed first and primary argument is that, in effect, the reason given for his dismissal is not "sound, defensible or well founded" because the direction to perform the GHSOP was unreasonable.

• [32] Mr Syed claims that on a technical level, the usage of bleach in the GHSOP procedure had negative effects, including discolouration or pinholes, on paint products.[12] Mr Syed contends that he should not have been dismissed because he had explained to Wattyl multiple times in June and July 2023[13] that the GHSOP procedure which they were instructing him to undertake was unnecessary. Mr Syed raised issues with Wattyl's data regarding the GHSOP on the basis that Wattyl did not take samples from the relevant areas to test. Mr Syed also claims there were some safety concerns arising from the use of bleach.[14] He claims that the GHSOP was implemented to place additional pressure upon himself,[15] and that it was ultimately unnecessary to maintain a proper standard of hygiene.[16]

• [33] Secondly, Mr Syed submits that the GHSOP cleaning procedure was a procedure that "nobody did."[17] He claims that his coworkers signed off on the procedure, but that he did not see them performing the GHSOP procedure regularly and that it was merely a formality.

• [34] Thirdly, Mr Syed submits that the real reason for his termination was not his concerns regarding the GHSOP, but rather the fact that he had raised concerns regarding other unnecessary and time-wasting practice such as acid being put in the machines, the wasting of water, and additional labelling requirements.

• [35] Wattyl submits that Mr Syed's repeated refusals to follow its directions to perform the GHSOP constitutes a valid reason for his dismissal. It notes that under its Enterprise Agreement which covered Mr Syed's employment,[18] repeated failure to follow a lawful and reasonable direction is an example of serious misconduct which warrants summary dismissal.

• [36] Wattyl contends that its instructions to conduct the hygiene cleaning process in accordance with the GHSOP were lawful and reasonable.[19] It highlights that the process was consistent with Mr Syed's contract of employment and that he was trained in the GHSOP process.

• [37] Wattyl submits the GHSOP is an effective process. It relies on the evidence of Mr Thenamkodath relating to data that shows equipment cleaned using the GHSOP process has bacteria readings which are significantly lower than before the process was implemented.[20]

• [38] Wattyl refutes Mr Syed's claim that the GHSOP negatively impacts on the product. Wattyl refers to the evidence of Ms Temby, Quality and Business Management System Manager. Ms Temby has a degree in Forensic and Analytical Chemistry, and a background as a R&D Chemist. Ms Temby gave evidence that the bleach cleaning solution is diluted and not directly applied to the paint product.[21] Ms Temby claims that the bleach does not cause a negative impact to Wattyl's paint products in the amounts and manner it is used,[22] and she has not encountered any customer complaints regarding Wattyl's paint related to bleach being used in its production facilities.[23] In oral evidence Ms Temby stated she had not seen any quality issue as a result of using the GHSOP process in relation to the hundreds of batches she had overseen.

• [39] Wattyl also refutes that there was any safety concern relating to the GHSOP. In this regard Wattyl relies on Ms Rowe's evidence regarding a meeting with Mr Syed on 11 February 2025, where Ms Rowe specifically asked Mr Syed if he had any concerns regarding employee safety. Ms Rowe claims Mr Syed said that he did not and that his concern related to the product.[24]

• [40] In response to Mr Syed's contention that the GHSOP procedure was not routinely followed by Mr Syed's coworkers, Wattyl relies on Mr Thenamkodath's evidence that he was aware that the previous Team Leader performed the GHSOP procedure on a "as required" basis or delegated the task to a team member.[25] Wattyl further relied on spreadsheets showing that bacteria levels had reduced after the performance of the GHSOP to show the procedure was being performed.

Was Wattyl's reason for termination "sound, defensible or well founded"

• [41] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[26] and should not be "capricious, fanciful, spiteful or prejudiced."[27] Having considered all the material before me, I find that that Wattyl's reason for terminating Mr Syed - namely repeated refusal to perform the GHSOP- was sound, defensible or well founded.

• [42] Firstly, on the evidence before me Wattyl's direction for Mr Syed to perform the GHSOP was a lawful and reasonable request.

• [43] Wattyl has clearly made a considered decision to use the GHSOP for cleaning and to control bacterial growth. Wattyl has monitored and tested of the GHSOP, and Wattyl is satisfied that the process does not impact on the quality of the product. When Mr Syed raised concerns regarding the process, Wattyl looked into his concerns, but determined to continue to use the process. I accept Ms Temby's evidence that she has not seen any negative effects of the use of the GHSOP, including not seeing any quality issues as a result of the GHSOP process in relation to the several hundred batches she had overseen.

• [44] I am also satisfied on the evidence before me that the GHSOP does not pose any serious safety risk to employees performing this duty.

• [45] While Mr Syed may disagree that the GHSOP is the most effective procedure, this is ultimately a choice for Wattyl to make.

• [46] Secondly, on the uncontested evidence before me, Mr Syed repeatedly refused Wattyl's lawful and reasonable direction to perform the GHSOP.

• [47] Mr Syed does not deny that he refused to perform the GHSOP. I note that Mr Syed raised issue with Ms Rowe's witness evidence which he claims records him stating words to the effect that he would not perform the GHSOP "15 times."[28] Mr Syed stated that he did not say he would not perform the GHSOP "15 times." In any event, it is clear on the evidence before me, that Mr Syed repeatedly chose not to perform the GHSOP, and used words to the effect that he would not perform the GHSOP on multiple occasions.

• [48] I reject Mr Syed's argument that other employees did not perform the GHSOP. Mr Syed conceded that he had seen the former team leader Mr Moir perform the procedure a few times, but he argued this was just a formality. He also gave evidence that he had seen another employee perform the GHSOP, but it was not the "proper" procedure.[29] I accept Mr Thenamkodath's evidence that other employees performed the GHSOP, including the former team leader Mr Moir.

• [49] In any event, even if Mr Syed could establish that other employees were not regularly performing the GHSOP, that does not detract from the fact that it was a reasonable and lawful direction that Mr Syed should have followed. Given Mr Syed was a team leader, it was particularly important that he followed reasonable and lawful directions issued by Wattyl.

• [50] I further reject Mr Syed's submission that he was terminated for other reasons such as raising concerns regarding unnecessary and time-wasting practices. With the exception of Mr Syed's claim that this was the case, there was no evidence before me to suggest Mr Syed was terminated for any reason except for the fact that he repeatedly chose not to follow a lawful and reasonable direction.

• [51] Accordingly, I have determined there was a valid reason for Mr Syed's dismissal.

1. Was Mr Syed notified of the valid reason?

• [52] For the purposes of s.387(b), notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[30] and in explicit, plain and clear terms.[31]

• [53] Mr Syed was notified of the reason for his dismissal multiple times. On the evidence before me, Mr Syed first refused to conduct the GHSOP process on 2 July 2024 and attended a meeting to discuss his refusal on 4 July 2024. Mr Syed subsequently refused to conduct the GHSOP process on 3 February 2025, 6 February 2025, 11 February 2025, and 14 February 2025. I am satisfied that Wattyl informed Mr Syed of the reason for his dismissal on many occasions, including the meetings in July 2024, and the meetings on 6 February 2025, 11 February 2025, and 14 February 2025.

• [54] I am also satisfied on the evidence before me that Mr Syed was advised by Ms Rowe on 14 February 2025 that his employment was at risk if he continued to refuse the instruction to conduct the GHSOP process.

• [55] This consideration weighs against a finding that the dismissal was harsh, unjust, or unreasonable.

1. Was Mr Syed given an opportunity to respond to any valid reason related to his capacity or conduct?

• [56] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[32]

• [57] In the matter before me, it is clear that Mr Syed was given many opportunities to respond to the reason for his termination. Mr Syed used these opportunities at the meetings on 6, 11, and 14 February 2025 to repeat his concerns and disagreements with the cleaning process set out in the GHSOP.

• [58] As noted above, after the meeting on 14 February 2025, Mr Syed was also provided a further window to submit any written documents about the chemicals used in the cleaning process. Mr Syed submitted several documents primarily detailing his concerns regarding the impact of sodium hypochlorite on products including fabric. These were considered by Ms Rowe and Mr Thenamkodath before the decision to terminate his employment was made.[33]

• [59] I am satisfied that Mr Syed was given an opportunity to respond to the reason for dismissal. This also weighs against a finding that the dismissal was harsh, unjust, or unreasonable.

1. Did Wattyl unreasonably refuse to allow Mr Syed to have a support person present to assist at discussions relating to the dismissal?

• [60] It is uncontested that Mr Syed was allowed to have a support person in all meetings relating to his work, up to and including the termination meeting on 17 February 2025.

1. Was Mr Syed warned about unsatisfactory performance before the dismissal?

• [61] Neither party submitted that Mr Syed's dismissal related to unsatisfactory performance. This consideration is not relevant in my determination.

1. To what degree would the size of Wattyl's enterprise be likely to impact on the procedures followed in effecting the dismissal?

1. To what degree would the absence of dedicated human resource management specialists or expertise in the Wattyl's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [62] In relation to considerations under s.387(f) and (g), I note that Wattyl is an employer of considerable size and employs dedicated human resources management specialists.

• [63] Ultimately, I have not found any major deficiency in the Respondent's disciplinary process. I have therefore not needed to make any conclusions about how the size of Wattyl's enterprise has impacted on its procedures. The considerations in s.387(f) and (g) are not relevant to my determination.

• [64] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [65] Mr Syed submits that he has had a substantial period of service with Wattyl, having been first employed as an Operator in 2016 before being promoted to Team Leader in 2024. He claims that production rates increased while he was Team Leader and submits that the termination outcome was harsh when considering these matters.[34]

• [66] Mr Syed further submits that he had been unfairly treated by Wattyl because he had not been successful in obtaining a job in Wattyl's colour lab. In addition, he raised concerns regarding Wattyl's alleged interaction with a previous employer.

• [67] Wattyl submits there are no other relevant matters before the Commission. Wattyl denies that Mr Syed was unfairly treated by Wattyl in relation to his application to obtain a job in the lab, and further denies it has had any interaction with Mr Syed's previous employer.

• [68] I have taken into account Mr Syed's length of service with Wattyl, and the fact that he clearly cared deeply about the quality of the product produced. However, I have also considered the fact that Wattyl paid Mr Syed 5 weeks notice in lieu, even though it considered his actions serious misconduct. I do not consider any of the other matters raised by Mr Syed relevant to my consideration of whether the termination was harsh, unjust or unreasonable.

• [69] Having taken into account all the considerations under s.387, and having regard to all the material before me, I have concluded that Mr Syed was not unfairly dismissed.

• [70] Mr Syed is clearly a clever man who cared deeply about his job and product quality. However, ultimately Wattyl is entitled to run its business how it sees fit, and issue lawful and reasonable directions. It is also clear to me that Wattyl engaged in an extensive and fair disciplinary process which afforded Mr Syed procedural fairness and gave him numerous opportunities to change his work practice and follow Wattyl's direction.

[1] Letter of Reference from Textile Mills Limited, Digital Hearing Book ('DHB)' page 11.

[2] Annexure JR-3 to Witness Statement of Josephine Rowe ('Rowe'), DHB 224.

[3] Transcript 27 May 2025 ('Transcript'), PN163.

[5] Witness Statement of Joseph Thenamkodath ('Thenamkodath') [26], DHB 139.

[9] Rowe [41] - [42], DHB 210 & Transcript PN243.

[10] Rowe [49], DHB 212 & Thenamkodath [41], DHB 141.

[11] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[13] Applicant's Submissions in reply, DHB 264.

[15] Applicant's Outline of Submissions, 3c, DHB 79.

[16] Applicant's Outline of Submissions, 6d, DHB 87.

[17] Applicant's Outline of Submissions, 6d, DHB 87.

[18] Hempel (Wattyl) Australia Pty Ltd National Operations Enterprise Agreement 2024, AE527559, clause 50(a)(ix).

[19] Respondent's Outline of Submissions [42] - [43], DHB 130.

[21] Witness Statement of Dianne Temby ('Temby') at [6], DHB 254.

[25] Supplementary Witness Statement of Mr Thenamkodath [4] - [6], DHB 265 - 266.

[26] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[30] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, [151].

[31] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[32] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[34] Applicant's Outline of Submissions, 6d, DHB 87.

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