1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Gursharan Singh
v
Certis Security Australia Pty Ltd
(U2023/5651)
DEPUTY PRESIDENT ANDERSON ADELAIDE, 28 FEBRUARY 2024
Application for an unfair dismissal remedy – security officer – roster change – unsubstantiated
performance concerns – direction to work alternate roster – refusal – termination – valid
reason – procedural fairness – whether harsh – dismissal not harsh, unjust or unreasonable –
application dismissed
[1] On 24 June 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, the respondent or the employer).
[2] Mr Singh was dismissed on 14 April 2023. He claims that his dismissal was unfair. He
seeks reinstatement or, in the alternative, compensation.
[3] Certis oppose the application.
[4] This decision determines the merit and remedy issues on Mr Singh’s unfair dismissal
application.
Litigation history
[5] The merit and remedy hearing was conducted in the wake of earlier litigation between
the parties concerning the underlying dispute.
[6] This is the second unfair dismissal application by Mr Singh against Certis.
[7] On 17 March 2023 Mr Singh made a first unfair dismissal application (earlier
application) in which he alleged that he was unfairly dismissed on 14 March 2023.1 The
employer contended that Mr Singh had not been dismissed as alleged.
[8] On 14 June 2023 I determined that Mr Singh had not been dismissed on 14 March 2023.2
I dismissed the earlier application on jurisdictional grounds (the jurisdictional decision).
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DECISION
AUSTRALIA FairWork Commission
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[9] On 24 June 2023 Mr Singh filed the current application in which he alleges that he was
unfairly dismissed one month later, on 14 April 2023.
[10] It is not in dispute that Mr Singh was dismissed on 14 April 2023.
[11] Mr Singh was dismissed whilst the earlier application was before the Commission but
unresolved.
[12] The current application was filed out of time.
[13] On 4 August 2023 I granted Mr Singh an extension of time.3 Certis appealed that
decision.
[14] On 8 November 2023 a Full Bench refused permission to appeal.4
[15] The matter returned to me for determination of merit and remedy.
[16] I issued directions on 6 December 2023.
[17] On 18 January 2024 Certis applied for an order to dismiss the application on the ground
of non-compliance by Mr Singh with directions concerning the filing of materials.
[18] On 23 January 2024 I refused the strike-out application and issued further directions.
[19] At the request of Certis, on 31 January 2024 I issued an order that Mr Singh produce
certain documents not contained in his materials.
[20] I conducted a merits and remedy hearing by video on 5 and 6 February 2024.
[21] Mr Singh appeared from Punjab, India. He was self-represented. I continued an earlier
contested grant of permission for Certis to be legally represented.5
[22] Consistent with my independent statutory responsibilities, I provided a degree of
assistance to Mr Singh as a self-represented applicant to ensure that his case was presented and
that of the respondent tested. Given the contested facts, this included a level of questioning of
employer witnesses that may have not otherwise been required had Mr Singh cross examined
more extensively.
Evidence
[23] I received evidence (oral and written) from six persons:
• Gursharan Singh (applicant);
• Peter Harms (Client Services Manager, Certis);
• Jason Koh (Regional Operations Manager, Certis);
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• Daniel Mykytyschyn (Security Supervisor, Certis);
• Deanna Symonds (Security Supervisor, Certis); and
• Greg Shaw (National Manager Human Resources, Certis).
[24] Mr Singh submitted that certain employer witnesses embellished the truth. Certis urged
that I make adverse credit findings against Mr Singh.
[25] Whilst all witnesses gave evidence conscientiously, certain cautions are required. This
is primarily because, given the litigation history, witnesses gave evidence ten to twelve months
after the relevant events. Over time, recollections fade, and some recollections were better than
others.
[26] Although a conscientious and respectful witness, some caution is necessary in assessing
the evidence of Mr Singh. Although a capable English speaker, I take fully into account that
English is not Mr Singh’s first language. Some forms of communication and expressions used
by him or to him, written or oral, may not have conveyed their exact meaning. That said,
handwritten diary notes by Mr Singh of relevant events6 were not contemporaneous, a point he
ultimately conceded in cross examination. Aspects of his evidence were generalisations or
exaggerations, such as his incorrect claim that work locations where he was rostered in April
2023 required three times the travel distance compared to his former workplace. I also found
Mr Singh’s evidence about an offer of work at the Myer Centre unconvincing; on that issue I
prefer the evidence of Mr Harms and Mr Koh. Similarly, I found Mr Singh’s evidence
concerning a telephone call with Mr Harms on 6 April 2023 about the roster he had been
directed to work unconvincing; on this I again prefer the evidence of Mr Harms. These aspects,
together with the lapse of time, lead me to apply a degree of caution.
[27] Mr Koh and Mr Shaw were impressive witnesses. Mr Shaw had relatively clear recall
whilst Mr Koh had a good recollection particularly of discussions with Mr Singh in March
2023.
[28] Mr Harms and Ms Symonds had some difficulty in aspects of their recall, but generally
their evidence was credible and consistent with the documentary record.
[29] The evidence of Mr Mykytyschyn was matter of fact but an unusual feature was that
Certis relied only on one paragraph of a statement he had prepared in May 2023 in proceedings
on the earlier application; the statement as a whole was not tendered. The explanation for this
was, according to Certis, that the entirety of the earlier statement was not necessary given the
agreed facts (below). Whilst this has some force and was a forensic choice by Certis, it had the
potential to create procedural unfairness to Mr Singh. I informed Mr Singh that he was entitled
to cross examine Mr Mykytyschyn on all matters relevant to merit, including on his earlier
statement and evidence (the transcript of which had been provided) and was not confined to the
one admitted paragraph. As it was, Mr Singh conducted only limited cross examination. I asked
questions of Mr Mykytyschyn on issues beyond the admitted paragraph.
[30] There are some factual differences. To the extent required, and without necessarily
preferring the evidence of one witness over the other, in resolving factual disputes I apply the
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standard tools available to first-instance decision-makers including creditworthiness,
plausibility and consistency with the documentary record.
[31] Some evidence is hearsay and opinion. I give little weight to hearsay (unless
uncontested) and treat it akin to that of a submission, as I do statements of opinion.
Facts
[32] In the jurisdictional decision I made findings of fact at [15] to [64]. In this proceeding,
Mr Singh and Certis agreed (below) to admit those findings except where each had specifically
identified.7
Agreed facts
Certis
[33] Certis contracts with clients to provide security and risk assessment services including at
commercial premises such as shopping centres. One such client is Westfield (the Scentre Group).
Employment of Mr Singh
[34] 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. It
specified a location at the “Scentre Group SA” though allowed for redeployment to other sites.
It provided for Hours of Work and circumstances in which working hours or rosters could be
varied. The relevant modern award also applied.
[35] Throughout his employment Mr Singh was located at the Westfield Tea Tree Plaza
shopping centre in suburban Adelaide.
Rostering dispute
[36] Mr Singh was regularly rostered to work two night shifts on weekends, commencing on
Friday and Saturday evenings.
[37] Together with limited overtime, this would commonly see Mr Singh working about 20
hours per week, well above his minimum contracted hours. Occasionally, Mr Singh’s hours of
work rose to around 30 per week.
[38] However, Mr Singh generally only worked weekend night shifts.
[39] 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.
[40] Mr Singh was on annual leave (including approved leave) from 4 January 2023 to 9
March 2023 and travelled to India.
[41] 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
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leave, Mr Mykytyschyn rostered another security officer, Mr Williams, to cover the weekend
night shifts that had been worked by Mr Singh.
[42] 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.
[43] 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.
[44] Mr Mykytyschyn advised that he “wanted to make some changes to the roster”.
[45] Mr Mykytyschyn and Mr Singh exchanged multiple messages on 19, 20, 23 and 27 February
2023.
[46] 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 looking for
offering me more hours”, Mr Mykytyschyn replied “I’m just reviewing the roster and going to
freshen it up”.
[47] On 20 February Mr Mykytyschyn and Mr Singh exchanged the following messages:
“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
every time got approved. I got refused even Thursday shift when
requested.
So, I’m happy to swap/drop after June.
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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.”
[48] 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:
“Mr Singh: Sir,
I need my normal core shifts, no compromise sorry
Or I will resign.
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”.
[49] Given the dispute, Mr Mykytyschyn sought advice from the South Australian Client
Services Manager Mr Harms.
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[50] 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
[51] On 27 February 2023, at the request of Mr Koh, and with the knowledge and support of
Mr Mykytyschyn, Mr Harms telephoned Mr Singh (who was still overseas) to discuss the roster
dispute and advise Mr Singh that the company would be placing him on a different roster. The
call was short. Mr Singh indicated that he preferred to speak to Mr Mykytyschyn or Mr Koh
about the matter. Mr Harms indicated that he would be sending Mr Singh details of the roster
change. During the discussion, and when pressed for a reason, Mr Harms made general
reference to performance concerns but did not elaborate.
[52] On 27 February, immediately after the phone call, Mr Harms sent Mr Singh the roster
change in writing.
[53] 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.
[54] Following the phone call with Mr Harms, Mr Singh texted Mr Mykytyschyn with the
message:
“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.”
[55] Mr Singh returned from overseas on 10 March 2023 as his annual leave had concluded
on 9 March.
[56] 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.
[57] 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”.
[58] 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.
[59] Upon being informed of the impasse, Mr Koh convened a meeting for 14 March 2023.
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[60] 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”.
[61] 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
[62] The 14 March meeting was attended by Mr Singh, Mr Koh, Mr Harms, Mr Mykytyschyn
and another Certis Security supervisor.
[63] Mr Singh stated that he wanted performance concerns discussed and dealt with before
he would discuss the new roster.
[64] Mr Singh was told that the performance concerns were a separate issue and that the
meeting was called to discuss the roster.
[65] Mr Singh pressed his position. His evidence was that he “remained defiant and
demanded evidence of the alleged accuses (sic) which was baseless”. 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.
[66] 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.
[67] The employer stated that it was within its rights to require Mr Singh to work the new
roster.
Unfair dismissal application
[68] On 17 March 2023 Mr Singh downloaded a copy of an unfair dismissal application and
populated it by hand. He sent it that day.
[69] 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.
[70] Certis first became aware of the unfair dismissal application and the assertion of
dismissal when advised by the Commission.
Events since application filed
[71] Mr Harms and Mr Singh had a further discussion. Precisely when is not clear from the
evidence. In 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
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to work at another shopping centre and would not agree to do so unless and until the
performance allegations had been dealt with.
[72] 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.”
[73] 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.
[74] On 30 March 2023 Mr Shaw sent Mr Singh a letter requiring him to work shifts as
directed.
[75] On 14 April 2023 a disciplinary meeting occurred with Mr Singh on account of his
alleged failure to work shifts as directed.
[76] 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.
Additional facts
[77] In addition to the agreed facts, I make the following further findings.
Mr Singh
[78] At the relevant times, Mr Singh was an overseas student residing in Adelaide and
completing full time tertiary study in Media and Communications at the University of South
Australia.
[79] Mr Singh’s tertiary studies were scheduled to conclude at the end of the semester in
June 2023, after which he would (and did) graduate.
[80] In addition to part time employment with Certis, Mr Singh had secondary employment
as a security officer with another company which serviced events at Adelaide Oval.
Employment contract
[81] Mr Singh’s employment with Certis was governed by a contract dated 26 April 20228
and the underpinning industrial instruments.
[82] The contract provided for Mr Singh to be a part time employee working at least 26 hours
per fortnight.
[83] In relation to the place of work, the contract provided:9
“8. PLACE OF EMPLOYMENT
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8.1 The primary business location is described in Clause 1 – Employment Details.
You will be required to work at this location, unless otherwise reasonably
requested by the Employer.
8.2 While the Employer will endeavour to maintain your placement at this site, in the
event of loss of contract, client request or due to operation reasons (or at the
Employer’s sole discretion) you may be deployed at other sites for the purpose
of providing security guarding services.
8.3 Due to the nature of the role, you may be required to travel to, and work at, client
and prospective client sites within a reasonable travelling distance, as directed
by the Employer.
8.4 You may also be required to travel as reasonably necessary for the performance
of your duties.”
[84] In relation to hours of work, Mr Singh signed agreements that ordinary hours may be
extended to up to twelve hours per shift and that his roster may be changed with less than seven
days’ notice. Appendix D of the contract provided:10
“APPENDIX D
Standing consent given pursuant to clause 15 of the Security Services Industry
Agreement 2020
I gsingh (Gursharan Singh), confirm that I provide standing consent for my ordinary
hours,
And/or my regular pattern of work, including the days of the week worked, hours
worked per day, and the starting and finishing times of each shift, to be varied pursuant
to clause 15 of the Agreement at the absolute discretion of Certis Security Australia to
suit operational requirements, to a maximum of 12 hours per day, or 76 hours per
fortnight. I agree and acknowledge that any variation made to my hours pursuant to this
standing consent is reasonable. I acknowledge that this standing consent does not create
an obligation or expectation for any hours beyond my minimum employment agreement
hours.”
Rostering availability
[85] On account of his tertiary studies, in February 2023 Mr Singh advised Certis (Mr
Mykytyschyn) that he was not available on Wednesdays. Mr Singh also advised Mr
Mykytyschyn that in the final semester of his studies (March to June 2023) he anticipated some
weekday placements precluding working on certain other days but at the time of informing Mr
Mykytyschyn Mr Singh did not know of any particular placement. On 26 February 2023 Mr
Mykytyschyn informed Mr Koh and Mr Harms of these rostering constraints in the context of
a broader email about the rostering dispute.11
27 February 2023 change of roster
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[86] The roster change advised to Mr Singh by Mr Harms on 27 February 2023 (agreed facts
above) took the form of a formal written notification titled “7 Day Change Notification – Roster
or/and Site Transfer Letter”. It is in evidence.12
[87] From India, Mr Singh immediately replied as follows:13
“Sorry team I refuse this roster. Pls put me on hold til this matter gets resolved. I always
can work on weekend most as I am a full time student till June 2023. If you want swap
the day shifts on weekends, I am so occupied on week days.”
14 March 2023 meeting
[88] Mr Koh had a private meeting with Mr Singh over coffee on the morning of 14 March
2023. The meeting was organised by Mr Koh to informally hear Mr Singh’s concerns and
explore whether a resolution could be found in advance of the more formal meeting scheduled
later that day. Mr Koh informed Mr Singh that he needed to recapture the confidence of Mr
Mykytyschyn and Westfield, and that this could be done by accepting the proposed roster at
Tea Tree Plaza which involved supervised day shifts before a subsequent return to night shift.14
[89] In relation to Mr Singh’s request that a specified officer of Westfield attend the
(afternoon) 14 March 2023 meeting, I repeat my finding (in the jurisdictional decision) that Mr
Koh declined the request stating (by email) 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”.15
[90] In relation to the (afternoon) 14 March 2023 meeting, I repeat my finding (in the
jurisdictional decision) that the meeting concluded with Mr Koh indicating that Mr Singh would
be given one or two weeks to further consider his position. 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 2023. In evidence in this hearing, Mr Koh described this as a “cooling
down” period.16
17 March 2023
[91] The 14 March 2023 (afternoon) meeting concluded on the basis that it would reconvene
in two weeks’ time to hear Mr Singh’s considered response and intention. However, the meeting
did not reconvene on that basis because on 17 March 2023 Mr Singh filed the earlier application
claiming he had been dismissed on 14 March, causing Mr Harms to write to Mr Singh on 27
March questioning what he meant. The issue was then left to be dealt with by Mr Harms with
support from internal human resources officers.
[92] On 17 March 2023 Mr Singh also initiated a text conversation with Mr Koh.17 He sent
Mr Koh (copied to Mr Harms, Mr Mykytyschyn and certain Westfield personnel) an email
responding to the 14 March meeting and advising that he would “involve” the Commission. It
read:18
“Hi,
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Just to confirm that I’ve been accused of below areas on 14/3/23 :-
- Not putting keys back to no key system
- use of incognito mode & watch movies in work computer
- statement that I have to walk for returning keys
- do not move beakon reports
My statement-
I never used incognito mode, I never watched movies, I never told anyone that I dont
return keys due to walk. Each time I skipped anything I mentioned reason. Few times
S1 & S2 didnt pick up call, I have call records. I tried my best to return all keys (even
other people’s keys) back unless asbestos barrier occur or renovation work. I have not
been advised with any alternative methods of key access by either supervisior. There
were couple of others which I was never advised of during past few months. I did
complaint about it as well.
Prior to this (27/2/23) I have been requested for roster change due to Justin Williams
family requirements and I refused. Suddenly, above allegations started occuring.
I also have been awared by external staff that Justin mentioned, “ I will do Guru’s shift
from now because he need it while I was on annual leave”.
I also send an email to Jason for requesting Certis In-house policy, and a mental health
medical certificate attached which is still remained unresponded.
Lastly, I am unable to work on weekdays as I have study load and classes. I request to
prove allegations with evidence. I would also like to have key logs of westfield tea tree
plaza.
Next, I have to get involved of external authorties such as fair work commision, tribunal
and so on.
I believe I have been a victim of racial discrimination and treated unfairly at work. I’ve
been forced to quit the job. Daniel had already a conflict across conversation with me.
Dee has lied about me and supported his senior. Peter (family friend of Daniel) has
played non-vital role in terms of dominating me.
- Gursharan Singh GURU
RSO Westfield Tea Tree Plaza”
[93] Between 14 March and 5 April 2023 Mr Singh was not required to work and did not
work in this period.
Offer of roster at Myer
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[94] Mr Harms and Mr Shaw discussed the unresolved rostering dispute in the days leading
up to 30 March 2023 in light of Mr Singh’s email response of 17 March and the proceedings
he had commenced.
[95] Aware that Mr Singh had earlier refused to work the new roster at Tea Tree Plaza which
Mr Mykytyschyn had prepared, and which was discussed on 14 March, Mr Harms sought to
find a further alternative.
[96] Mr Harms telephoned Mr Singh in the days prior to 30 March and suggested that Mr
Singh be rostered to work at the Myer Centre in the Adelaide CBD on the same night shifts that
he had worked at Tea Tree Plaza. This option arose as Certis had acquired a contract at the
Myer site commencing 1 April 2023. Mr Singh refused. Mr Singh advised Mr Harms that he
did not wish to work at a different location whilst his concerns at Tea Tree Plaza were
unresolved. As noted, I make these findings having preferred the evidence of Mr Harms to that
of Mr Singh concerning this conversation.
[97] Mr Harms reported this to Mr Koh and Mr Shaw.
Direction 30 March 2023
[98] Mr Harms and Mr Shaw considered that a formal direction needed to be given to Mr
Singh to work a roster that met operational requirements or face disciplinary action. Mr Harms
developed a further alternate roster for that purpose.
[99] On 30 March 2023 Mr Shaw wrote to Mr Singh. Included in the letter was the
following:19
“Direction to attend work
Certis formally directs you to attend your shifts as rostered, commencing on
Thursday 6 April 2023, 1515 – 1915 (4-Hours) at Big W – Gawler.
A full copy of the roster for the next 03/04/23 to 09/05/23 is attached to this letter below.
Thursday 6-April Big W – Gawler 1515-1915 (4-Hours)
Friday 7-April Big W – Cumberland Park 1715-2115 (4-Hours)
Saturday 8- April Big W – Elizabeth 1200-1700 (5-Hours)
- Total 13-hour week
Thursday 13- April Big W – Gawler 1515-1915 (4-Hours)
Friday 14- April Big W – Cumberland Park 1715-2115 (4-Hours)
Saturday 15- April Big W – Elizabeth 1200-1700 (5-Hours)
- Total 13-hour week
- Total 26-hour fortnight
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Clause 13.6(a) of the Award provides that you "must work [your] ordinary hours of
work in accordance with a roster of which [you] have been given advance notice".
We confirm that this is a lawful and reasonable direction in the course of your
employment.
Clause 37.1(e) of your Employment Contract provides that Certis may terminate your
employment without notice or without a payment in lieu of notice if you "refuse to
comply with any reasonable instruction or direction including any failure to comply
with your obligations under any of the Employer’s rules, policies and/or procedures
and any directions given by management of the Employer".
The contents of this letter are confidential. If we become aware that you have not kept
the contents of this letter confidential, you may be subject to disciplinary action up to
and including the termination of your employment.
If you have any questions regarding this letter, please contact me using the details below.
Kind Regards,
Greg Shaw
Human Resources - National Manager”
(emphasis in original)
[100] Mr Singh responded by email the next day (31 March 2023):20
“Dear Greg,
Thanks for your response in connection to the ongoing issue either way since I
sent an email to HR of South Australia.
Let me make it clear, before Peter's approach, I have been contacted by my supervisor
to make a request to offer my shifts to another guard who just moved himself back to
certis after a year working at some other place (Evidence available).
All of sudden, Peter raised my performance issue after I refused to drop my shifts till
June 2023 only. In the presence of Jason Koh, Daniel clearly dismissed me verbally
from night shifts (Witnessed by Jason), and offered day shifts which intended to force
me to quit my role (Fair Work Act 2009 - Sec 386 [1.b] which says 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.). He also forced a fresh
assistant supervisor to lie about me and she did.
It can also be noticed, earlier I have been offered a week day time roster at the same
workplace, later I have been offered a few other different places verbally over the phone
by Peter, Now this letter is presenting further new places which are 2x far away from
my previous workplace. In parallel to this, the supervisor advised that some other guard
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needs those shifts because of his family comfort, later, Manager advised that I need to
be involved in the day time team and enhance my skills, then advised my Peter that I
am lacking in performance during night shifts. It drove me crazy and I have been through
unslept nights and stress (evidence emailed previously).
Furthermore, I am an international student, I would have never been legally eligible to
be available for 24/7 days, which was cleared in my interview. Daniel got promoted as
supervisor just a few months ago, before that I've been working fine under ex. supervisor
Shannon Rodda. After a good performance at one of the stores in the mall, Shannon
chose me for this role and offered particularly a single weekend shift and a Thursday
evening shift when everyone else refused to do so.
Moreover, I am unsure what is being cooked at your back however I truly request you
to investigate critically and fairly. I am a son of a police sergeant, I am raised up and
taught to live with a head up. I had captured a major break in incident on the last day of
my shift before annual leave including 5K dollars recovery of goods, no one yet
appreciated or rewarded me for that. Even the state manager was unaware of this
milestone though it was highlighted on tv channels and biggest night time recovery.
On the other hand, here are some points from my knowledge which might be helpful to
do a fair investigation and research (not meant to advise but because I am a media &
communication student I am doing so)
• Every Saturday, I work with Morgan Osborne (RSO at Westfield), I suggest you
approach him for my performance survey.
• Approach Night cleaner supervisor Chris for my performance survey. Whatever
accuse is, please investigate - check key return compliance register via
Westfield, utilise CCTV, Night audits by Supervisor (including reasonable notes
mentioned where non-comply), fortnightly audits completed by Jason.
• Seek if there was any warning given to the employee for whatever the cause is.
• seek if there are any nepotism involved in the cause
I request you to get any evidence produced by my workplace incharge for my bad
performance, if I am found guilty shall permit it. I was always willing to help everyone
out if I am able to. I will still be loyal to my company. Let me know if I can help you in
any way before 18th April 2023. I will keep fighting for fairness till my last breath
regardless of what the results would be.
very truly and sincerely yours
Gursharan Singh (Guru)”
(emphasis in original)
6 April 2023
[101] Aware that Mr Singh had been rostered and directed to commence work at 3.15pm on 6
April 2023 at Gawler in Adelaide’s northern suburbs, Mr Harms telephoned Mr Singh on the
morning of 6 April to ascertain whether he intended to attend for work.
[2024] FWC 546
16
[102] Mr Singh told Mr Harms that he would not be attending work that day or otherwise as
directed and not “until all of this is sorted out on 18 April”.21 The 18 April 2023 was a listed
conciliation conference in the Commission on Mr Singh’s earlier application. I make this
finding having again preferred the evidence of Mr Harms over Mr Singh on this issue; Mr
Singh’s evidence, at least initially, was that he did not receive a call on 6 April 2023 from Mr
Harms. This evidence was unconvincing. It is also implausible given the subsequent
communication Mr Harms sent to Mr Shaw22 and national operations at short notice to secure
a standby security officer for the 6 April shift.23
Dismissal 14 April 2023
[103] On 13 April 2023 Mr Shaw notified Mr Singh that he was required to attend a meeting
on 14 April 2023 to also be attended by Mr Harms. Mr Shaw advised that he was “welcome to
bring a support person”.
[104] On 14 April 2023 Mr Shaw and Mr Harms met with Mr Singh. Mr Singh brought a
support person.
[105] Mr Shaw opened the meeting by referring to the rostering dispute and the 30 March
direction, and noted that Mr Singh had not worked as required by the direction. Mr Singh
acknowledged he had received the direction.
[106] There is a factual dispute whether Mr Shaw then gave Mr Singh an opportunity to
explain or respond. I prefer the evidence of Mr Shaw that he did so. His recollection was precise
and generally corroborated by Mr Harms even though Mr Harms’s recollection was less precise.
I find that Mr Singh was given an opportunity to explain. It is implausible that in the midst of
a considered disciplinary process Mr Shaw would not have done so. He said he did so and that
evidence is plausible. Mr Singh did not respond in any detail.
[107] Mr Shaw then advised Mr Singh that he would be terminated for failing to comply with
a lawful and reasonable direction.
[108] The meeting concluded. I do not find that Mr Singh was given a termination letter during
the meeting as he claimed in evidence.
[109] Shortly after the meeting (2.23pm) Mr Shaw sent Mr Singh a termination letter by email.
It read, after setting out relevant background:24
“Direction Letter
On 30 March 2023, you were issued with the Direction Letter. The primary purpose of
the Direction Letter was for Certis to formally direct you to attend your shifts as rostered,
commencing with a shift on Thursday 6 April 2023 from 3.15 pm to 7.15 pm at the Big
W - Gawler site.
[2024] FWC 546
17
A full roster for the period 3 April 2023 to 9 April 2023 was attached to the Direction
Letter. The number of hours that you were rostered to work in this period was consistent
with the range agreed under your Employment Contract.
The Direction Letter identified that this was a lawful and reasonable direction in the
course of your employment. You did not attend this shift as rostered.
It was explained to you in the Direction Letter that failure to comply with such a
direction (or a "failure to comply with your obligations under any of the Employer's
rules, policies and/or procedures and any directions given by management of the
Employer") constitutes grounds for Certis to terminate your employment without notice
or without a payment in lieu of notice under clause 37.1(e) of your Employment
Contract.
Termination of Employment
Accordingly, Certis has determined to terminate your employment on the basis of your
failure to comply with the lawful and reasonable direction issued to you in the Direction
Letter. The termination of your employment is effective today, 14 April 2023.
You will be paid your accrued but unused annual leave entitlements as at today's date
and any outstanding pay up to and including your last day of employment. If you have
been paid annual leave in advance, any amount still owing will be deducted from your
final pay.
Return of property
Please return all uniforms, ID cards, access keys and any other tools or equipment
belonging to Certis by close of business Wednesday 19 April 2023.
Ongoing obligations
As you know, Certis places great importance on protecting its business. Certis pursues
every avenue legally available to safeguard and retain its customer base. This includes
the enforcement of obligations which remain with former employees after they have left
Certis. Please ensure that you comply with your continuing obligations stated in your
Employment Contract.
You are lawfully and reasonably directed to treat this process as strictly confidential and
not discuss this letter or your responses with any employees of Certis.
We note that the Employee Assistance Program can be contacted on 1800 XXX XXX
(Assure Programs) to provide confidential support if required.
Please contact me if you have any questions in relation to this correspondence.
Otherwise, this matter is strictly confidential and must not be discussed with any person.
Yours sincerely
[2024] FWC 546
18
Greg Shaw
National Manager – Human Resources”
(emphasis in original)
[110] As noted in the extension of time decision, Mr Singh did not file this application until
after the jurisdictional decision on the earlier application had been delivered.
Submissions
Mr Singh
[111] Mr Singh submits that the dismissal was unfair because the February 2023 decision to
remove him from an established roster of working weekend night shifts at Tea Tree Plaza was
unfair.
[112] Removing Mr Singh from the weekend night shift roster at Tea Tree Plaza was unfair
because:
• He was a hardworking and competent employee. There were no performance grounds
that warranted the change let alone dismissal and he had received no performance
warnings;
• The change was decided whilst he was overseas on approved leave;
• The change was imposed on him to favour another employee who had taken over the
rostered shifts whilst he was on approved leave;
• The reasons for the change (alleged performance concerns) were not substantiated or
discussed in a procedurally fair way;
• The change did not take into account his personal circumstances and availability,
especially his educational studies; and
• The change was made at the request of a client (Westfield). Certis changed the roster in
response to what the client wanted.
[113] Mr Singh submits that because there was no valid performance or operational basis for
the change in roster and because others did not experience the same change, the change was
discrimination on the ground of his ethnicity and the dismissal was also unfair on that ground.
[114] Mr Singh submits that there was no valid reason for dismissal. He submits that the
direction of 30 March 2023 was not lawful because the employment contract required a roster
change to be reasonable. It was not reasonable because:
• It was made whilst the dispute over the Tea Tree Plaza roster change remained
unresolved;
[2024] FWC 546
19
• It was made despite Mr Singh indicating that the status quo should remain until the end
of the semester (June 2023) when he may have considered new rosters after that date;
• It required him to work at three new locations. Two of the three locations were further
in distance from his home than had been the case whilst working at Tea Tree Plaza; and
• It required him to work on weekdays which was not consistent with his personal
circumstances or educational studies.
[115] Mr Singh submits that the dismissal was harsh and he was denied procedural fairness
because he was not given an opportunity to have the performance allegations made against him
discussed and resolved.
[116] Mr Singh submits that he was denied procedural fairness because he was not given an
opportunity to explain his position at the dismissal meeting, and his dismissal was
predetermined.
[117] Mr Singh submits that as there was no valid reason for dismissal, he should be reinstated
to his former position and roster (the weekend night shift roster at Tea Tree Plaza) with back
wages. He submits that there has been a turnover of managers and security staff over the past
year meaning that there should be no problem re-establishing working relationships.
[118] Mr Singh submits, in the alternative, that he should be paid the maximum compensation
of six months given that he has suffered financial loss and experienced stress and trauma from
being dismissed.
Certis
[119] Certis submit that the dismissal was for a valid reason because Mr Singh failed to
comply with a lawful and reasonable direction.
[120] The direction of 30 March 2023 was lawful because it was consistent with the rights and
obligations Certis had to roster and vary rosters of security officers including the rights it held
under the terms of its employment contract with Mr Singh.
[121] The direction of 30 March 2023 was reasonable because:
• It was based on a genuine operational need to provide security services at the nominated
locations at the rostered times;
• It was a further attempt by Certis to break the impasse of repeated refusals by Mr Singh
to work the changed roster at Tea Tree Plaza that had been notified on 27 February
2023;
• The reasons for the change in roster had been discussed with Mr Singh and they included
genuine performance concerns held by his supervisors and by the client;
[2024] FWC 546
20
• The direction came in the wake of Mr Singh having refused to be rostered weekend
night shifts at the Myer Centre in the Adelaide CBD, and at other locations;
• The rosters Mr Singh was required to work by the direction, and the earlier rosters
proposed on 27 February and at the Myer Centre, did not require Mr Singh to work on
days or at times when he had advised he would be unavailable on account of educational
or other commitments; and
• The rostered work required of Mr Singh under the direction did not include locations,
days or times that were unreasonable.
[122] Mr Singh provided no reasonable explanation for refusing to work the rostered shifts as
directed. His refusal was repeated, defiant, and in full knowledge of the potential consequences.
[123] Mr Singh was provided procedural fairness because:
• Multiple discussions, formal and informal, occurred with him concerning the earlier
roster change;
• Reasonable notice was given of the rostered work required by the direction;
• The issue became disciplinary only once Mr Singh failed to work the roster as directed
and only after multiple earlier attempts had been made to find a solution to the rostering
dispute. Ultimately Mr Singh sought to dictate to the business the roster he would work,
which was not his right and was unacceptable conduct;
• Mr Singh was warned of the potential consequences, which included dismissal; and
• Mr Singh was given multiple opportunities to explain including at the dismissal
meeting.
[124] Whilst it is not necessary to determine, for the purposes of this application, whether the
performance concerns held by Certis and Westfield were valid because Mr Singh was dismissed
for refusing to work a roster as directed and not dismissed on performance grounds, Certis
submit that it was legitimate for the employer to form a view about performance issues, to take
into account the views of their client about the performance of Certis staff working on the
client’s premises, and to make rostering decisions accordingly.
[125] There is no basis on which to order a remedy in favour of Mr Singh.
[126] If a remedy is ordered, reinstatement is wholly inappropriate given the lapse of time, the
attitude of Mr Singh to persons still working in the business (including regarding their evidence
as untruthful) and Mr Singh’s defiant refusal to have worked as directed.
Consideration
[127] It is not in dispute that Mr Singh was dismissed on 14 April 2023 with dismissal taking
immediate effect.
[2024] FWC 546
21
[128] The issue for determination is whether Mr Singh’s dismissal was “harsh, unjust or
unreasonable” and, if so, whether it is appropriate to order a remedy by way of reinstatement
or compensation.
[129] No jurisdictional issues arise. Mr Singh was protected from unfair dismissal within the
meaning of s 382 of the FW Act. He served the statutorily required minimum employment
period (s 382(2)(a)). His annual rate of earnings did not exceed the high income threshold (s
382(2)(b)(iii)). His employer was a “national system employer” within the meaning of s 14 of
the FW Act. An extension of time has been granted under s 394(3) allowing the late application
to proceed.
[130] Section 387 of the FW Act provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable,
the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or
conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[131] I now consider the factors in s 387.
Valid Reason (s 387(a))
[2024] FWC 546
22
[132] An employer must have a valid reason for the dismissal of an employee. It is the
Commission’s task to determine if a valid reason exists. The reason(s) should be “sound,
defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced”.25
[133] Other than in the case of a small business (as defined), in a conduct-based dismissal26
the test is not whether the employer believed on reasonable grounds, after sufficient inquiry,
that the employee was guilty of the conduct. The Commission must itself make findings as to
whether the conduct occurred based on the evidence before it.27
[134] A valid reason is not assessed simply by reference to a legal right to terminate a contract
of employment.28
[135] Mr Singh was dismissed, in the words of the termination letter, for his “failure to comply
with the lawful and reasonable direction issued to you in the Direction letter” of 30 March 2023.
[136] The direction required Mr Singh to work shifts as a security officer at three separate
locations on 6, 7 and 8 April and those same shifts on 13, 14 and 15 April 2023.
[137] It is not in dispute that Mr Singh did not work those shifts. However, as Mr Singh was
dismissed on 14 April 2023, the actual shifts he failed to work in advance of being dismissed
were those on 6, 7, 8 and 13 April only.
[138] Was the direction lawful and reasonable?
Lawfulness
[139] I turn firstly to lawfulness.
[140] Under his contract of employment, Mr Singh was required to work the hours for which
he was rostered (clause 9) and was required to work at Westfield centres or at other locations
(clause 8) reasonably required by the employer.
[141] I find that having regard to the number of hours, location, shift types and days of the
week, the direction was lawful.
[142] Number of Hours. The direction required Mr Singh to work thirteen rostered hours per
week. I take into account that this was somewhat less than the number of hours Mr Singh had
regularly worked when on the weekend night shift roster. However, the number of rostered
hours was consistent with (although the minimum allowable by) the contractual obligation to
roster Mr Singh for at least twenty-six hours per fortnight.
[143] Location. Mr Singh’s contract referred to the “Scentre Group SA” as the location of
work. This was a reference to Westfield centres in South Australia. However, this right was
subject to the reasonable variation of location provision in clause 8 of the contract. Thus, Mr
Singh’s contract did not preclude Certis from rostering him at Westfield locations other than
Tea Tree Plaza nor at other business locations where that was reasonable. I deal with the
reasonableness aspect below.
[2024] FWC 546
23
[144] Shift types. Mr Singh’s contract did not confine Certis to employing Mr Singh on one
particular shift type only. Although Mr Singh regularly worked weekend night shifts, he had no
contractual claim on that shift or a night shift roster only. Occasionally Mr Singh did work day
shift, and when he did so it was lawfully required of him.
[145] Days of the week. The contract (clause 9) provided that the days of the week Mr Singh
could be rostered were across the business span of Monday to Sunday, 24 hours per day. Mr
Singh had no contractual claim to being rostered only on particular days of the week.
[146] Given that Mr Singh regularly worked weekend night shifts, the direction was a roster
variation. Did Certis exercise a lawful right to vary the roster?
[147] Mr Singh was given notification of the change of roster in accordance with law. Under
the standing consent signed by Mr Singh (Appendix D to the contract), variation of the roster
was “at the absolute discretion of Certis…to suit operational requirements”. A dispute exists
over the meaning of the immediately following sentence:
“I agree and acknowledge that any variation made to my hours pursuant to this standing
consent is reasonable.”
[148] Certis submit that this clause means that Mr Singh agreed to deem or declare any future
variation as reasonable. Mr Singh submits that variations were permissible only if they were in
fact reasonable.
[149] Whilst not without doubt, the construction of Appendix D which I prefer is that this
sentence conditions what immediately precedes it rather than being an advance declaration of
reasonableness. On that construction, the standing consent conditions the absolute discretion of
the employer to vary rosters by an objective requirement of reasonableness. The counter
interpretation urged by Certis would render the sentence of no utility given that the preceding
sentence confers an absolute discretion on the employer. Principles of construction avoid giving
language no work to do. Further, a contractual requirement of objectively established
reasonableness to vary rostered hours is consistent with the contractual requirement of
reasonableness in clause 8 to vary rostered locations.
[150] However, given my finding below as to reasonableness, the construction dispute is
moot.
Reasonableness
[151] Was the direction reasonable? I find that it was. I consider it reasonable both by
reference to context and by reference to its terms.
[152] The context was that by 30 March 2023 a month-long rostering dispute existed which
had reached a stalemate. Mr Singh had refused by text, email and orally to work the roster
developed by his supervisor Mr Mykytyschyn as was formally notified on 27 February 2023.
He then rejected informal suggestions by Mr Mykytyschyn that alternative rosters be worked
at either West Lakes or Gawler. A cooling off period had then been provided by his regional
manager but that did not alter Mr Singh’s stance. Even in the wake of Mr Singh commencing
[2024] FWC 546
24
proceedings in the Commission, Certis (through Mr Harms) had made a further attempt to break
the impasse by suggesting that Mr Singh work weekend night shift hours but at a different
location, the Myer Centre in the Adelaide CBD. Mr Singh had refused.
[153] It is apparent from the above that, in an endeavour to deal with the dispute, at different
times Certis proposed rosters at the location Mr Singh wanted (but different shifts) and then
rosters of the shift type he wanted (weekend night shifts) but at a different location. These were
significant steps taken by Certis in good faith to resolve the impasse.
[154] Mr Singh refused and his refusal was repeated. He refused because he sought only one
arrangement, at least for the remainder of the semester and until the performance concerns were
substantiated – a return to weekend night shifts at Tea Tree Plaza which he had worked before
going on leave. In this respect Mr Singh was issuing his employer an ultimatum; one the
employer had the right to reject.
[155] In this context it was reasonable for Certis to bring the matter to a head by making a
final attempt to resolve the impasse and to do so by way of a formal direction that expressly
carried, for the first time, disciplinary consequences.
[156] The terms of the direction were also reasonable.
[157] I take into account that Mr Singh had only previously worked for Certis at Tee Tree
Plaza (in the north-eastern suburbs) and was now being directed to work at three locations. Two
of those three (Gawler and Elizabeth in the northern suburbs) were further in distance and travel
time than his former travel to Tea Tree Plaza (45 to 50 minutes compared to 20 to 25 minutes).
However, neither were so far from his residence or beyond Tea Tree Plaza to be objectively
unreasonable. Further, the days Mr Singh was rostered avoided the one day which he had
advised clashed with his studies (Wednesday). At the time the direction was issued, Mr Singh
had not advised Certis that any other days were interrupted by studies or placements. Nor had
Mr Singh advised that the days he was directed to work clashed with any secondary
employment.
[158] I do not consider it to have been unreasonable for Certis to roster Mr Singh day shifts.
Doing so was consistent with the desire by Certis that Mr Singh work in a more supervised and
guided environment, at least for a period of time. As noted, Mr Singh had occasionally in the
past worked day shifts, as a supplement to regular night shifts. The number of hours per week
Mr Singh was directed to work were fewer than his previous roster, but consistent with
operational need and contractual minimums.
[159] The direction was both lawful and reasonable.
[160] I find that Mr Singh failed to comply with a lawful and reasonable direction.
Conclusion on valid reason
[161] Was this a valid reason for dismissal?
[162] I consider it was.
[2024] FWC 546
25
[163] The direction was notified in advance. It required work of the type Mr Singh was
contracted to perform. There was no reasonable explanation for Mr Singh not performing the
work as directed. His desire to have the performance concerns which had triggered the earlier
roster change substantiated was understandable but in the face of his refusal to work any
different roster (including the roster as directed) a valid reason existed. His failure to attend for
work as a security officer struck at the heart of Mr Singh’s employment obligations. The failure
was repeated and considered.
[164] I take into account that Mr Shaw made the decision to dismiss on one incorrect premise;
he was wrong in believing (based on advice from a human resources officer) that Mr Singh had
failed to attend rostered shifts between 14 March and 5 April 2023.29 Mr Singh had not done
so, as this was the ‘cooling off’ period decreed by Mr Koh. However, more material is that the
dismissal was based on a correct premise that rostered shifts had not been worked as directed
on 6, 7, 8 and 13 April 2023.
[165] Mr Singh referred in submissions to the medical certificate he had produced for the
period 27 February to 13 March 2023. Mr Singh acknowledged in evidence that this was the
only medical certificate he had submitted to Certis.30 That a medical certificate existed covering
this earlier period provides no reasonable explanation for Mr Singh failing to work as directed
on 6 April 2023 and following.
[166] Mr Singh submitted that he was dismissed on account of race or on account of nepotism
by Mr Mykytyschyn. These submissions were made on the premise that as no valid reason
existed then ulterior motives must have been at play. However, I have found that a valid reason
existed. There is no probative evidence to support a finding that dismissal was for ulterior
reasons.
[167] For completeness, one further issue arises. In direct conversation with Mr Harms on 6
April 2023, Mr Singh stated that he intended to “wait for 18 April” rather than work as
directed.31 Mr Singh had alluded to this in his earlier email to Mr Shaw on 31 March.32 To the
extent that this was a reference by Mr Singh to conciliation listed in the Commission on 18
April 2023 on the earlier application, I do not consider this to have been a reasonable
explanation for not complying with the direction. Mr Singh had been put on notice by Mr Harms
on 27 March that he was a continuing employee notwithstanding claims in the earlier
application. That application did not displace continuing obligations Mr Singh had as an
employee. The Commission had made no order interfering with rights and obligations; it had
simply listed Mr Singh’s earlier application for conciliation. Mr Singh did not assert in
conversation with Mr Harms on 6 April or at the termination meeting that he had not worked
as directed because he was not employed by Certis; indeed such an assertion would have been,
for reasons set out in the jurisdictional decision, wrong. It was not unfair that Certis did not wait
for conciliation on the earlier application before terminating Mr Singh’s employment.
[168] As the direction was lawful and reasonable and as Mr Singh failed to work as directed
and without reasonable excuse there was a valid reason for dismissal.
[169] This weighs against a finding that the dismissal was unfair.
[2024] FWC 546
26
Notification of reason for dismissal (s 387(b))
[170] Mr Singh was notified of the dismissal and its reason at the end of the termination
meeting on 14 April 2023 and in the letter of termination subsequently sent that day.
[171] Mr Singh disagreed with the reason but knew why he had been dismissed.
[172] This is a neutral conclusion.
Opportunity to respond (s 387(c))
[173] An employee protected from unfair dismissal should be provided an opportunity to
respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond
should be provided before a decision is taken to terminate an employee’s employment.33
[174] The opportunity to respond is an element of procedural fairness but does not require
formality. This consideration is to be applied in a common sense way to ensure the employee
is treated fairly.34 Where an employee is aware of the precise nature of the employer’s concern
about his or her conduct or performance and has a full opportunity to respond to this concern,
that is enough to satisfy this consideration.35
[175] In the direction of 30 March 2023 Mr Singh was informed of the requirement to work
the roster as advised and that a failure to do so was a disciplinary issue which may lead to
termination of his employment. In other words, Mr Singh was on notice of what was required
of him and of the possible consequences.
[176] I am satisfied that Mr Singh had a reasonable opportunity to respond.
[177] His first response to the direction and its disciplinary message was his email to Mr Shaw
the following day, 31 March 2023. In that communication he responded in detail expressing his
opinion on what had occurred in relation to the rostering dispute, inviting Mr Shaw to
investigate his belief that nepotism was at play and defending himself against performance
accusations.
[178] I have also found that during the 14 April 2023 meeting, well after it was known by
Certis that Mr Singh had refused to work the shifts as directed, Mr Shaw gave Mr Singh a final
albeit brief opportunity to put anything further before advising Mr Singh that his employment
was terminated.
[179] Given that Mr Shaw immediately announced the decision and shortly after the meeting
sent a termination letter by email, it is reasonably open to draw an inference that Mr Shaw had
a predisposition at the start of the meeting, knowing that Mr Singh had not worked the roster as
directed, that dismissal was a likely consequence should there be no new or other explanation
proffered by Mr Singh. I do not however find that dismissal was predetermined in the sense of
the employer’s mind having been closed to any new information or explanation.
[180] A disciplinary process may, depending on the circumstances, require business managers
contemplating disciplinary action to consider different scenarios or form provisional or in-
[2024] FWC 546
27
principle views during that process. Depending on the circumstances, doing so may but does
not necessarily characterise a dismissal as unfair. The issue is whether procedural fairness was
denied not whether Mr Shaw considered dismissal to be a possible or even probable
consequence of the meeting. Mr Singh was neither ambushed nor denied procedural fairness.
[181] This weighs against a finding that the dismissal was unfair.
Opportunity for support person (s 387(d))
[182] Where an employee protected from unfair dismissal has requested a support person to
assist in discussions relating to dismissal, an employer should not unreasonably refuse that
person being present.
[183] Mr Singh brought a support person to the 14 April 2023 meeting. The employer did not
unreasonably refuse a support person.
[184] Mr Singh submits that he was not told that he could bring a support person to the 14
March 2023 meeting and was denied his request that the Westfield officer who he believed to
have sought his removal from the weekend night shift roster be in attendance on 14 March.
[185] This submission does not point to a denial of procedural fairness. Unlike the 14 April
meeting, the 14 March meeting was not a disciplinary meeting. It was a workplace meeting
between Mr Singh, his supervisor and other Certis managers to try to resolve the rostering
dispute. There was no obligation on Certis to suggest to Mr Singh that he attend with a support
person. Further, Mr Singh sought the participation of the Westfield officer not as a support
person but as a related third party from whom he directly wished to hear about the performance
concerns.
[186] This is a neutral consideration.
Warnings concerning performance (s 387(e))
[187] No warnings concerning performance had been given to Mr Singh. At its highest, the
evidence indicates that Mr Singh had occasionally been informally spoken to by his supervisors
during past shifts about relatively minor performance matters, some of which had been logged.
[188] However, by February 2023 Mr Mykytyschyn had lost a degree of confidence in Mr
Singh particularly once the client had expressed a preference for Mr Williams to continue the
weekend night shifts. Mr Koh supported Mr Mykytyschyn’s view. This is evident from Mr
Koh’s emails to Mr Mykytyschyn on 12 and 13 March 2023 stating that “Guru has been advised
of performance gaps” and “please arrange for a meeting with Guru…this is to discuss the
performance issues which were previously advised.”36
[189] That said, this was not a dismissal for performance reasons. It was a conduct based
dismissal; the conduct being the failure by Mr Singh to work shifts in April 2023 which had
been directed. I deal further with the issues of performance in considering harshness (below).
[190] This is a neutral consideration.
[2024] FWC 546
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Size of enterprise and human resource capability (ss 387(f) and (g))
[191] Certis had local and national human resource capacity and it was used to provide support
and advice to local management in South Australia, particularly as the rostering dispute reached
a stalemate and especially so once the earlier application had been made to the Commission.
[192] This is a neutral consideration.
Other matters (s 387(h))
[193] Mr Singh submits that his dismissal was harsh because he was not provided an
opportunity for the performance concerns to be dealt with directly and substantiated before
being required to work a changed roster at the same location and then directed to work a
different roster at different locations.
[194] There is some merit in this submission.
[195] I agree with Certis that it is not necessary, given that this is a conduct based dismissal,
to determine whether the performance concerns were reasonably held. However, there is a
factual connection, albeit indirect, between the performance concerns and the direction. It was
the rostering dispute stalemate which led to the direction being issued. The rostering dispute
arose because Mr Singh took exception to being moved off the weekend night shift roster at
Tea Tree Plaza. He was moved off that roster at least in part due to minor performance concerns
and client preference.
[196] Given this, it was reasonable for Mr Singh to have wanted the performance concerns
openly discussed and dealt with on their merits. He raised this upfront at the 14 March 2023
meeting. It was unreasonable for Mr Koh to have responded that the meeting was being held to
discuss the new roster and not the performance concerns. That proposition was unfair to Mr
Singh because, objectively considered, the two were connected. Further, it was inconsistent
with what Mr Koh had informed Mr Mykytyschyn in the days prior by emails on 12 and 13
March 2023.37
[197] Having previously worked a regular roster that included weekend night shifts prior to
going on leave, fairness dictated that Mr Singh was entitled, at a minimum, to have the reasons
for the roster change made known to him, and to the extent that they concerned performance
concerns, to have those issues discussed openly by his employer and his points of view
considered on their merit.
[198] However, mitigating the force of this submission is the following.
[199] Firstly, the submission that this renders the subsequent dismissal harsh conflates the
performance issues with the dismissal. Although indirectly connected given the factual matrix,
the requirement that Mr Singh work a different roster as directed was not set aside by earlier
alleged performance issues or the earlier change to the Tea Tree Plaza roster, whether merited
or unmerited, or whether resolved or unresolved.
[2024] FWC 546
29
[200] Secondly, it was the right of Mr Singh’s supervisors and managers to form a view about
the performance issues, even minor ones, and to take into account feedback from the client
about the performance of staff working on client premises, and to then make rostering decisions
accordingly.
[201] Thirdly, although the performance concerns were not dealt with directly or resolved to
finality, Mr Singh did express his view orally and in writing. What he really wanted was to
debate the performance issues with Westfield, believing (wrongly) that Westfield alone was the
source of the concerns and shift change. Certis was well within its rights to decline to bring its
client into the meetings with Mr Singh.
[202] Fourthly, even though the employer may have had other reasonably available options,
the decision to not retain Mr Singh on the weekend night shift roster upon his return from leave
had a rational basis. Another employee had been working those shifts in the preceding two
months to the employer’s satisfaction and that of the client. Certis managers decided that the
performance concerns would be best managed by Mr Singh working supervised day shifts
rather than the largely solo work of night shifts. Mr Koh told this to Mr Singh during their
coffee chat on the morning of 14 March.
[203] Fifthly, Certis did not abdicate its responsibilities to the client. The performance
concerns were not simply the invention of the client; though it is a reasonable inference on the
evidence that the client’s preference to have Mr Williams continue working night shifts was
material to the roster change.
[204] Mr Singh was understandably upset by the fact that unsubstantiated performance
concerns had contributed to being moved off the weekend night shift roster. That distress was
compounded by the fact that the employer did not directly deal with those concerns to finality
but rather did so by establishing a different roster at Tea Tree Plaza.
[205] However, taking all the circumstances into account, the failure by Certis to directly deal
with the alleged performance concerns and openly determine whether they were substantiated
weighs somewhat, but only somewhat, in favour of a finding of harshness.
[206] There are no other matters for consideration.
Conclusion on unfairness
[207] Unfair dismissal matters are multifactorial.38
[208] In considering whether Mr Singh’s dismissal was “harsh, unjust or unreasonable” the
Commission is required to consider each of the matters in s 387 of the FW Act to the extent
relevant.39 Those matters must be considered as part of an overall assessment. Each assessment
must be made on its merits. That assessment is to be based on the ordinary meaning of the
words, in their statutory context. Context includes the object stated in s 381(2) of the FW Act
that:
“…the manner of deciding on and working out such remedies are intended to ensure
that a “fair go all round” is accorded to both the employer and the employee concerned.”
[2024] FWC 546
30
[209] In arriving at an overall assessment, the statutory considerations must be applied in a
practical, common-sense way to ensure that the employer and employee are each treated
fairly.40
[210] I have found that the 30 March 2023 direction was lawful and reasonable.
[211] I have found that the failure by Mr Singh to work as directed was a valid reason for
dismissal. I have found there was no reasonable explanation for Mr Singh not doing so.
[212] I have found that even though Certis may have had other options available to it, the
employer had a rational basis for the rostering decisions it made. I have also found that the
employer had sought to resolve the rostering dispute by proposing reasonable alternatives to
Mr Singh in advance of issuing the direction. The dispute was only escalated to a disciplinary
level once other reasonable attempts to find a solution had been exhausted.
[213] I have found that Mr Singh was given procedural fairness during the disciplinary
process.
[214] All these factors weigh against a finding of unfairness.
[215] However, the one factor that weighs in favour of Mr Singh is that the employer did not
provide Mr Singh an appropriate measure of procedural fairness in the management of the
alleged performance concerns that were relevant to its earlier decision in February 2023 to move
him off a regular pattern of weekend night shifts at Tea Tree Plaza. The performance concerns,
which in part had triggered that change of roster, had not been directly addressed in a
procedurally fair manner.
[216] This is a material consideration. It weighs in favour of a finding of unfairness but is not
of itself decisive or determinative because ultimately the dismissal was conduct and not
performance based and was grounded upon a subsequent refusal by Mr Singh to work a
different roster as lawfully and reasonably directed.
[217] Upon considering all factors as a whole and in context, I do not find the dismissal to
have been harsh, unjust or unreasonable.
Conclusion
[218] As the dismissal was not harsh, unjust or unreasonable no issue of remedy arises.
[219] Application U2023/5651 is dismissed.
[220] An order giving effect to this decision is issued in conjunction with its publication.41
[2024] FWC 546
31
DEPUTY PRESIDENT
Appearances:
G. Singh, on his own behalf
S. McIntosh of counsel, with permission, on behalf of Certis Security Australia Pty Ltd with A.
Kunc of HWL Ebsworth Lawyers
Hearing details:
2024.
Adelaide;
5 and 6 February
Printed by authority of the Commonwealth Government Printer
PR771939
1 U2023/2209
2 [2023] FWC 1375
3 92023] FWC 1892
4 [2023] FWCFB 202
5 Email ‘Chambers – Anderson DP’ 24 July 2023 continued 6 December 2023
6 A1 figure 6
7 Mr Singh at A5; Certis at R6 R-2
8 R6 R-5
9 R6 R-5 clause 8
10 R6 R-5 Appendix D
11 R6 R-9
12 R6 R-10
13 R6 R-11
14 R2 paragraphs 35 and 36
15 R6 R-16
16 Audio transcript 5 February 2024 at 7 hours 32 minutes
17 A2 pages 13-14; R2 paragraph 44
18 R6 R-16
19 R6 R-20
20 R6 R-21
21 R1 paragraph 58
THE FAIR WORK MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1375.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb202.pdf
[2024] FWC 546
32
22 R6 R-22
23 R6 R-23
24 R6 R-25
25 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373
26 Except where the Small Business Fair Dismissal Code applies
27 King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]
28 Sydney Trains v Hilder [2020] FWCFB 137, [26] principle (6)
29 Audio transcript 6 February 2024 at 2 hours 39 minutes
30 Audio transcript 5 February 2024 at 6 hours 23minutes
31 R6 R-22
32 R6 R-21
33 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897, [75]
34 RMIT v Asher (2010) 194 IR 1, 14-15
35 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7
36 R6 R-14, R-15
37 R6 R-14, R-15
38 Jones v Brite Services [2013] FWC 4280, [24]
39 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR 915674, [69] (AIRC, 21
March 2002)
40 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458
per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial
Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C, [36]
41 PR771940
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb137.htm
http://www.fwc.gov.au/decisionssigned/html/2013fwc4280.htm
http://www.fwc.gov.au/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/alldocuments/pr915674.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb8868.htm
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr771940.pdf
