1
Fair Work Act 2009
s.394—Unfair dismissal
Gursharan Singh
v
Certis Security Australia
(U2023/2209)
DEPUTY PRESIDENT ANDERSON ADELAIDE, 14 JUNE 2023
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.
[2023] FWC 1375
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1375
2
Evidence
[10] I received evidence (oral and written) from four persons:
• Gursharan Singh (applicant);2
• Peter Harms (Client Services Manager, Certis Security);3
• Daniel Mykytyschyn (Security Supervisor, Certis Security);4 and
• Greg Shaw (National Manager – Human Resources, Certis Security).5
[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.
[14] Some evidence is hearsay. I give little weight to hearsay (unless uncontested) and treat
it akin to that of a submission. Some evidence, particularly Mr Singh’s second statement6,
strayed into merit. I do not make findings as to merit except where necessary to determine the
jurisdictional issue.
Facts
Certis Security
[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).
Employment of Mr Singh
[16] Mr Singh is an overseas student completing full time tertiary study at the University of
South Australia.
[17] Mr Singh commenced as a casual security officer in December 2020. In April 2022 he
became a part time employee. His contract provided at least 26 hours of work per fortnight.7 It
specified a location at the “Scentre Group SA” though also provided for redeployment to other
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sites8. It provided for Hours of Work and circumstances in which working hours or rosters could
be varied.9 The relevant modern award also applied.10
[18] Throughout his employment Mr Singh was located at the Westfield Tea Tree Plaza
shopping centre in suburban Adelaide.
Rostering dispute
[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.
[28] Mr Mykytyschyn advised that he “wanted to make some changes to the roster”.11
[29] Mr Mykytyschyn and Mr Singh exchanged multiple messages on 19, 20, 23 and 27
February 2023.12
[30] On 19 February Mr Mykytyschyn stated “I’m going to be reviewing the roster and
making some changes”. Later that day, in response to a question from Mr Singh “are you
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looking for offering me more hours”, Mr Mykytyschyn replied “I’m just reviewing the roster
and going to freshen it up”.13
[31] On 20 February Mr Mykytyschyn and Mr Singh exchanged the following messages:14
“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”
Mr Singh: I understand.
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.
So, I’m happy to swap/drop after June.
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.”
[32] On 23 February, when it became apparent to Mr Singh that Mr Mykytyschyn was
intending to roster him on weekdays and not the weekend night shifts, a dispute emerged. Mr
Mykytyschyn and Mr Singh exchanged the following messages:15
“Mr Singh: Sir,
I need my normal core shifts, no compromise sorry
Or I will resign.
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I’m not gonna do car park shifts.”
Mr Mykytyschyn: Hi guru
Its only for that week
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.
Dallow is helping out west lakes.
I was going to roster you on
Tuesday afternoons
Thursday afternoons
Friday afternoons”
“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.
Weekend day/night shifts *
How can you do it even without my consent.
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.
New roster
[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
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change. During the discussion and when pressed for a reason, Mr Harms made general reference
to performance concerns but did not elaborate.
[36] On 27 February, immediately after the phone call, Mr Harms sent Mr Singh the roster
change in writing.16
[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.
[38] Following the phone call with Mr Harms, Mr Singh texted Mr Mykytyschyn with the
message:17
“Hey mate
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.
[42] Mr Singh advised Mr Mykytyschyn by text on 6 March that he “won’t be able to work
on rostered shifts” until the rostering dispute was resolved. He requested “a meeting with
appropriate people before commencement of my work”.18
[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.
[45] Mr Singh requested that a specified officer of Westfield attend the meeting so he could
hear “her story” and “make it easier for me to move forward”. Mr Koh declined the request
stating that “guards performance is a matter that should be managed by Certis…[the requested
person] is a client and is not responsible for guards matters”.19
[46] Prior to the meeting with Mr Singh on 14 March, South Australian management spoke
to Westfield Tea Tree Plaza management about Mr Singh.
14 March meeting
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[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.
[50] Mr Singh pressed his position. His evidence was that he “remained defiant and
demanded evidence of the alleged accuses (sic) which was baseless”.20 Although the managers
were unwilling to discuss the performance concerns in detail, Mr Singh was directly told, for
the first time, that the client (Westfield Tea Tree Plaza management) had concerns about his
performance on the night shifts and that it (the client) did not wish him to work those shifts.
[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.
Unfair dismissal application
[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.
Events since application filed
[58] Prior to Certis Security becoming aware of this application, Mr Harms and Mr Singh
had a further discussion. Precisely when is not clear from the evidence. Mr Harms believed it
was a few days after the 14 March meeting; Mr Singh’s notes suggest it was on 21 March.21 In
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that discussion Mr Harms suggested a further alternative whereby Mr Singh could be rostered
to work at the Myer Centre in the Adelaide city. Mr Harms made this further suggestion in order
to resolve the impasse. Mr Singh maintained the view that he did not wish to work at another
shopping centre and would not agree to do so unless and until the performance allegations had
been dealt with.
[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.
[60] On 27 March Mr Harms emailed Mr Singh asking him why he had filed an unfair
dismissal application when “you have not been dismissed and are still employed by us”. Mr
Singh replied that he had “been dismissed unfairly from night shift”.22
[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.
Submissions
Mr Singh
[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:
• the employer unreasonably removed him from his former roster;
• the employer lied to him about the reasons for changing the roster and refused to discuss
its performance concerns with him;
• the employer concealed from him the involvement of the client in its decision to change
the roster; and
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• the employer refused to allow him a support person at the 14 March meeting.
[68] Accordingly, Mr Singh submits that his application is within jurisdiction.
Certis Security
[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.
Consideration
[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:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the
employer’s initiative; or
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(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) 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:
• where the employee is effectively instructed to resign by the employer in
the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the
employer which gives them no reasonable choice but to resign.”
[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)
Termination at the employer’s initiative
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[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.
Resignation
[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
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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.
[88] Mr Singh’s case is based on an incorrect premise that he was “dismissed” because he
had been removed from a roster that he had worked prior to going on leave.26 Mr Singh conflates
the fact that he was removed from that roster with the proposition that this constituted a
dismissal such that his refusal to work the new roster was a resignation. A requirement that an
employee work a new or different roster that is met with a refusal by the employee to do so is
not a resignation. Mr Singh’s conduct on or around 14 March 2023 was a refusal to work the
new roster because of his circumstances and because performance concerns had not been
plainly put and resolved. There was a standoff been he and his employer but it was not a
resignation.
[89] In reaching this decision I have taken into account Mr Singh’s submission that he “does
not have a thorough grasp of Australian law; as a result, he assumed a verbal resignation” and
that he “didn’t give any official resignation in his life before”.27 This submission, whilst
relevant, does not take the matter any further. I have observed that a resignation can be written
or oral. However, I have not found that Mr Singh verbally resigned. I have found that, at its
highest, Mr Singh verbally and by text foreshadowed or threatened to resign but not that he in
fact resigned. Just as cultural differences do not obviate the need for an employer to express a
dismissal in clear and unequivocal terms,28 so too with an employee’s resignation.
[90] Mr Singh submitted that Mr Koh texted him on the evening of 17 March indicating that
he (Mr Koh) intended to resign and take responsibility for the situation, and that this is relevant
to the jurisdictional issue.29 I do not agree. Without making any finding as to the meaning of
the text exchanges between the two that evening, and without expressing a view as to whether
such texts are relevant to merit, they do not bear on whether Mr Singh resigned on 14 March
2023.
[91] Mr Singh did not resign from his employment on or around 14 March 2023 effective to
10 March 2023 as alleged.
Forced resignation
[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.
Conclusion
[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.
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[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.
[100] An order giving effect to this decision will be issued in conjunction with its
publication.30
DEPUTY PRESIDENT
Appearances:
Mr G Singh, on his own behalf
Mr G Shaw of and on behalf of Certis Security Australia
Hearing details:
2023
Adelaide (by video)
8 June 2023
HE WORK COMMISSION THE SEA
[2023] FWC 1375
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Printed by authority of the Commonwealth Government Printer
PR762996
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)
5 R1 Statement of Mr Shaw 24 May 2023
6 A2
7 R2 Employment Contract 26 April 2022 Clause 1
8 R2 clause 8.2
9 R2 Clause 9
10 Security Services Industry Award 2020
11 R5 paragraph 25
12 DM2; DM4
13 DM2
14 DM4
15 DM4
16 PH1; DM5
17 DM4
18 A2 figure 12.1
19 R2 figure 8
20 A2 paragraph 6
21 A1 figure 6
22 R3
23 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54]
24 [2017] FWCFB 3941
25 Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
26 A1 paragraph 7
27 R2 submission below figure 4.1
28 Hardacre v Highway Enterprises Pty Ltd t/as Taings Noodles [2023] FWC 1053, [105], [147]
29 A2 figures 10.1 and 10.2
30 PR762997
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1053.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr762997.pdf
