| [2018] FWC 4324 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mohamad Abou-Eid
v
The Islamic Society of Victoria Inc.
(U2017/8462)
COMMISSIONER BISSETT |
MELBOURNE, 9 AUGUST 2018 |
Application for an unfair dismissal remedy – compliance with the Small Business Fair Dismissal Code – whether conduct amounted to serious misconduct – Regulation 1.07 of the Fair Work Regulations 2009 – reasonable grounds for dismissal - dismissal was fair – application dismissed.
[1] Sheik Mohamad Abou-Eid (Applicant) was employed by The Islamic Society of Victoria Inc (ISV) as the Imam of the Preston Mosque (Mosque). He commenced employment in January 2004. His employment was terminated on 29 March 2017.
[2] The Applicant has applied to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal. He says he was unfairly dismissed and that he wants to be reinstated to his position as Imam.
[3] The ISV and the Preston Mosque are one and the same. The ISV 1 has a committee of management (ISV committee) responsible for administrative (non-religious) matters associated with the Mosque. The ISV committee is made up of a President, a Secretary and committee members. Members are elected to the ISV committee pursuant to the registered rules of the ISV.
[4] The ISV is a member of the Islamic Council of Victoria (ICV), an umbrella group of Islamic mosques within Victoria.
[5] The Applicant was a member of the Board of Imams Victoria (BOIV). Membership of the BOIV is open to Imams within Victoria although membership is not compulsory and a person may be employed as an Imam even if they are not a member of the BOIV. The BOIV is not an accrediting body but is a religious body. The BOIV, amongst other things, provides advice to Islamic communities on observance of holy days and times (e.g. sunset and sunrise times). The Applicant was Secretary of the BOIV and had held this position for about 10 years.
[6] Much of the detail surrounding the decision to dismiss the Applicant is contested. However, there is an overarching narrative that is not contested which is set out below.
[7] In early 2017 the BOIV became aware of complaints from two women with respect to the conduct of the Applicant which it considered inappropriate. The complaints were brought to the attention of the BOIV by the ICV.
[8] The detail of that conduct of the Applicant complained of is not before the Commission.
[9] The ISV committee was made aware of the complaints against the Applicant on 13 February 2017. Members of the ISV committee saw and read the written statements of the women concerned at a meeting with the BOIV and ICV on 14 February 2017. The ISV committee decided that it would take no action on the matter pending the determination of the BOIV.
[10] On 16 February 2017 the BOIV and the ISV issued a joint statement in which they said that they had each decided to suspend the Applicant “pending the outcome of a full investigation into serious allegations and complaints made by certain members of the community”. The statement further said that the Applicant would be “given a fair hearing to address these allegations. The Islamic Council of Victoria…supports the decision…” 2
[11] A further letter was sent to the Applicant on 16 February 2017 advising him that he had been suspended by the BOIV and that “[t]his means that you cannot perform any of the duties if Imam including performing marriage ceremonies…This suspension is effective immediately.” The letter also advised the Applicant that he was required to “attend a hearing on Tuesday February 21 at to the office of the BoiV…where you will be given an opportunity to answer the very serious allegations…” 3 This letter is on ISV letterhead although it is not abundantly clear who authored the letter. An email in very similar terms was sent to the Applicant by Sheik Isse Musse, President of the BOIV, on 17 February 2017.4
[12] The BOIV investigated the complaints including by conducting a meeting with the Applicant on 22 February 2017. As a result of the answers received at that meeting the BOIV decided to terminate the Applicant’s membership of the BOIV. This was conveyed to the Applicant’s (then) solicitor on 23 February 2017. 5 The Applicant replied (through his solicitor) indicating that he intended to appeal the decision noting that, under Rule 9(2) of the Rules of the Board of Imams of Victoria Incorporated (BOIV Rules), the resolution of the BOIV “does not take effect…if the member exercise a right of appeal…” For this reason the Applicant urged the BOIV to not issue any statements on the matter.
[13] On 24 February 2017 the Applicant (through his solicitor) informed the BOIV that he was resigning from the BOIV immediately and that he would not be proceeding with his appeal of the decision.
[14] On 25 February 2017 (in response to comments made by the Applicant on 24 February 2017) the BOIV issued a public statement to the effect that it had decided to terminate the Applicant’s membership of the BOIV 6 but noted that an appeal had been instigated by him and this would be allowed to run its course.
[15] Coinciding with the actions of the BOIV the Applicant was also dealing with some specific matters with the ISV. On 13 February 2017 the Applicant spoke separately to two new members of the ISV committee, Yousef Hussein and Ahmed Osman Allouche, about what he considered to be misappropriation of funds, in particular monies that had been raised by the Mosque intended to provide support to refugees in Syria but also about money for graves in Lebanon and money paid in relation to the Islamic school. The Applicant did not believe that the money raised had been properly accounted for or sent to where it was intended. The Applicant told the two new members that if there could not be some resolution with the ISV committee about the money then he would speak publicly to members of the Mosque about the matter.
[16] The ISV committee met on 14 February 2017 however the Applicant was not invited to attend and did not attend that meeting (he was not a formal member of the ISV although on occasion the ISV would meet in his office at the Mosque while he was present). Following that meeting the Applicant was advised by Ahmed Abdul Wahid that he would not get his mobile phone number back (which apparently had been transferred to the ISV who paid for the telephone). He was also told by Mr Wahid that he was not to raise the issue of the missing money again and that the ISV had “50 women” to speak out against him.
[17] In the evening of 14 February 2017 the Applicant removed a number of documents from his office at the Mosque including a registrar of marriages he had performed, copies of sermons he had given and personal papers.
[18] In the evening of 15 February 2017 Mr Wahid contacted the Applicant and told him he was not to attend the Mosque and that if he did he would be arrested.
[19] At about 4.30 am on 16 February 2017, as he was about to leave for morning prayers, the Applicant said that two young men attempted to enter his house and demanded that he hand over the papers. The Applicant took the reference to papers to be pledge documents in relation to a fundraiser for Syria.
[20] On 16 February 2017 at about 11.00 pm Mr Samir Mohamed, an ISV committee member, attended the Applicant’s house. The Applicant’s brother, Mr Souleiman Abou-Eid, explained that the Applicant was too ill to come to the door so Mr Mohamed gave Souleiman an envelope to give to the Applicant. The envelope contained the document on ISV letterhead suspending the Applicant from his position of Imam. 7
[21] The 17 February 2017 was a Friday, an important day of prayer at the Mosque. The Applicant would, as Imam, normally deliver the sermon. Because he was suspended as Imam he was not permitted to give the sermon from the Minbar. 8 Having been barred from entering the Mosque the Applicant gave a speech to members of the Mosque standing on the fence of an adjacent property instead. In that speech the Applicant made a number of allegations including in relation to the misappropriation of funds by the ISV committee.
[22] On 18 February 2017 the Applicant collapsed while attending the local police station to report the missing funds and/or the attempt by two young men to enter his house in the early morning of 16 February 2017. He was admitted to hospital where he stayed for some days. He was discharged on 21 February 2017.
[23] On 22 February 2017 9 the Applicant and his lawyer attended the hearing of the BOIV. Approximately 12 Imams were in attendance as was the BOIV lawyer. The inquiry went for between 30 minutes and one hour. At the conclusion of the hearing the Imams present discussed the matter and determined to terminate the Applicant’s membership of the BOIV.
[24] On 24 February 2017 the Applicant gave an interview to “A Current Affair” (ACA) where he again aired his allegations with respect to missing money and the ISV committee. The story was televised on 28 February 2017.
[25] Later that day, despite being aware that he had been suspended as Imam, the Applicant again attended the Mosque. He was escorted from his car, which was parked about 200 metres away, into the Mosque by a group of men who had him surrounded. His entrance to the Mosque grounds was noisy with a level of yelling and pushing. The ACA reporter and film crew were also there so that footage exists of the event. Police and security guards were present. No action was taken to stop the Applicant from entering the Mosque.
[26] On 3 March 2017 the Applicant did not attend the Mosque but some of his apparent supporters did attend and requested of Mr Tarek Khodr, President of the ISV committee, that the sermon not go ahead that day. Mr Khodr believed they were there as spokespeople for the Applicant.
[27] On 3 March 2017 lawyers for the ISV wrote a “concerns notice” 10 to the Applicant. The notice requested that the Applicant:
• Retract false allegations outlined in the notice and issue a public apology;
• Send a letter to specified media outlets retracting statements he made in public sermons and interviews;
• Delete offending material published about members of the Mosque committee;
• Provide a written apology to each member of the Mosque committee;
• Undertake not to publish further material that defames the members of the Mosque committee. 11
[28] The letter was provided to the Applicant in English and also in Arabic. 12
[29] On 29 March 2017 the Applicant was advised by letter that his employment had been terminated by the ISV. The letter said, in part:
The Board of Imams Victoria (BOIV), the body charged with responsibility of regulating and training and accreditation of Imams in Victoria, has investigated serious complaints made against you by several female members of the Preston Mosque congregation. The complaints relate to what these women allege is your inappropriate conduct towards them during your tenure as Imam of the Preston mosque, which include inappropriate sexual conduct (BOIV Investigation).
On 14 February 2017, as a result of the complaints made against you, the BOIV suspended your membership pending the completion of the BOIV investigation. Consequently, your accreditation to act as Imam in Victoria was also suspended, and on Thursday 16 February 2017 your employment by the Islamic Society of Victoria as the Imam of the Preston mosque was also suspended (with full pay and entitlements) pending the outcome of the BOIV investigation.
On 22 February 2017, after completing its investigation, the BOIV unanimously terminated you as a member…
Although you initially appealed the BOIV decision, you later withdrew your appeal and accepted the BOIV’s termination of your membership.
As you are no longer accredited by the BOIV to act as an Imam, you are no longer able to perform the functions of Imam of the Preston Mosque. Further, because of the serious nature of the complaints made against you by members of the Preston Mosque congregation, you can no longer hold any position of trust and confidence with members of the Preston Mosque congregation, especially female members. Finally, your conduct following the suspension by the Islamic Society of Victoria, which is the subject of, and described in, a Concerns Notice dated 03 March 2017 (Concerns Notice), was inflammatory and evidenced your flagrant disregard of lawful directions given to you by your employer.
For the reasons outlined above, your employment by the Islamic Society of Victoria is hereby terminated… 13
[30] Evidence in the proceedings was given for the Applicant by:
• Mr Mohamad Abou-Eid (he Applicant);
• Mr Souleiman Abou-Eid (the Applicant’s brother); and
• Sheik Rajab Idrizi.
[31] Evidence was given on behalf of the ISV by:
• Mr Tarek Khodr, President of the ISV;
• Mr BahaYehia, Community Engagement Co-Ordinator of Islamic Relief;
• Mr Ali Abou-Eid, Accountant; and
• Mr Mustafa Sarakibi, General Manager and Treasurer, Board of Imams Victoria.
[32] Whilst a number of other witness statements were filed those people were not called to give evidence and their statements have not been considered by the Commission.
Assessment of the evidence
[33] The evidence given by many of the witnesses in these proceedings must be treated carefully. Many of the statements made were hearsay or were statements that could not be tested. Many were opinions or suppositions of the witness as to the motivations or reasons why others had taken certain decisions or adopted certain positions. For example, the Applicant gave evidence that he had been contacted by organisations about donations that had not been received by them but there was nothing to support such statements. No documentary evidence or statements from people who may have had such contact with the Applicant were produced. In the one case where an email was produced, the email was sent in January 2018 in response to a request made by the Applicant to that organisation. The author of the email was not available to the Commission and assertions in the email of earlier contact with the Applicant could not be substantiated.
[34] There is no evidence before the Commission to support assertions in evidence of amounts of money actually collected in donations (as opposed to pledges made) from the Mosque congregation and there is no factual evidence of missing funds.
[35] The witnesses were generally unresponsive to the matters put to them, they were more intent on giving their views, interpretation of, and reasons for events, as opposed to providing factual material that could be relied on with some confidence by the Commission.
[36] The written statements of the witnesses were also problematic. Some contained substantial basic inaccuracies or appeared to have been cut and pasted from statements prepared for some other proceeding. There was little evidence that they were prepared with the assistance of, or filed by, lawyers who should have some sense of the standards required of evidence in a tribunal generally.
[37] Although the Commission is not bound by the rules of evidence 14 they are relevant and cannot be ignored to the extent that it causes unfairness between the parties.15
[38] I am satisfied that the Applicant is protected from unfair dismissal. Following his dismissal the Applicant made an unfair dismissal application on 31 March 2017. 16 That application was subsequently discontinued. A further unfair dismissal application was made by the Applicant on 4 August 2017.17 The Applicant was granted an extension of time within which to make his application such that the application was made within an extended time period allowed for by the Commission.
[39] Section 385 of the Fair Work Act 2009 (FW Act) states as follows:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
[40] In this case, I am satisfied that the Applicant has been dismissed from his employment. Whilst he did suggest that he could not be dismissed by the ISV committee or that he could only be dismissed according to the constitutional arrangements of the Mosque or by Sharia law or by the full membership of the Mosque, I am satisfied that the Applicant was employed by the ISV committee on behalf of the ISV and had a contract of employment with the ISV signed by the President and Secretary of the ISV committee on behalf of the ISV. I am satisfied that under the Constitution and Rules of the ISV, the committee is responsible for the “control and manage[ment of] the business and affairs of the Association”. 18 There is nothing in the Rules that suggests the employment or termination of employment of the Imam of the Mosque is limited to the members of the ISV and not otherwise the ISV committee. The ISV committee exercised this power on 29 March 2017.
[41] I am satisfied that the dismissal was not a case of redundancy.
[42] The ISV is a small business (this is not disputed) and says that the dismissal was consistent with the Small Business Fair Dismissal Code (Code). Even if it was not, the ISV says that the conduct of the Applicant was such to justify summary dismissal and that the dismissal was not harsh, unjust or unreasonable.
[43] Having claimed the dismissal was consistent with the Code it is necessary to first determine if this was, in fact, the case.
[44] The Code states:
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
[45] In Pinawin T/A RoseVi.Hair.Face.Body v Domingo 19 (Pinawin) the Full Bench of Fair Work Australia said:
[29] …There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.
[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.
[31] The question we need to consider in this case is whether Mr and Mrs Pinawin believed on reasonable grounds that Mr Domingo’s conduct was sufficiently serious to justify immediate dismissal.
…
[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee...
Was the applicant summarily dismissed?
[46] For the Code to apply in this case the Applicant must have been summarily dismissed or otherwise meet the criteria under the heading of “Summary Dismissal” as used in the Code. It is not contentious that the incidents that may be relevant to the dismissal of the Applicant commenced around mid-February 2017 (which should not be taken as to any comment on how long the Applicant may have been raising issues of financial mismanagement). The BOIV made its decision to terminate the Applicant’s membership on or about 22 February 2017, whilst his employment was not terminated by the ISV committee until 29 March 2017, some six weeks later.
[47] In Ryman v Thrash Pty Ltd T/A Wisharts Automotive Services20 (Ryman) the Full Bench of the Commission forensically assessed what might be said to be covered by the “Summary Dismissal” provisions of the Code. The Full Bench concluded:
[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates the following way:
(1) If a small business employer has dismissed an employee without notice – that is, with immediate effect – on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectivity speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.
[48] Of the decision in Pinawin the Full Bench said:
[39] To be clear, nothing stated above is to be taken as suggesting that in relation to such a dismissal it is necessary for the Commission to be satisfied that the serious misconduct which is the basis for the dismissal actually occurred in order for the dismissal not to be unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v Domingo:
“[29] … There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”
[40] Whether the employer had “reasonable grounds” for the relevant belief is of course to be determined objectively.
[endnote omitted]
[49] Regulation 1.07 of the Fair Work Regulations 2009 (FW Regs) states:
1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) …
[50] In this case, the Applicant was dismissed because of the serious nature of the complaints made against him and his conduct following his suspension by the ISV. I am satisfied that the grounds of his dismissal fit within the definition of serious misconduct as defined in Reg. 1.07 (particularly Reg. 1.07(2)(a) or (2)(b)(ii)) of the FW Regs or for conduct that would otherwise fall within the definition of serious misconduct.
[51] In its amended outline of argument 21 the ISV set out four grounds on which it says it dismissed the Applicant. These are that the Applicant:
1. lost the approval of the relevant governing body for Imams [BOIV] following complaints of misusing his position to engage in inappropriate behaviour with female congregation members (sexual misconduct);
2. himself or through family members and supporters engaged in riotous behaviour outside the Mosque on three successive Fridays (17 and 24 February 2017 and 3 March 2017);
3. made outrageous allegations of misappropriation of millions of dollars on ACA;
4. made statements of intent to the effect he was conducting a political campaign over his employer.
[52] I am satisfied that the ISV committee did have such a belief of the Applicant’s conduct and that this belief arose from, firstly, the actions of the ICV and BOIV in investigating the complaints of the two women and, second from its observations of the Applicant’s actions following his suspension and its belief of the effect of these actions. Further, I am satisfied that the ISV committee believed the conduct was sufficiently serious to justify immediate dismissal.
[53] I do not consider that waiting until 29 March 2017 to dismiss the Applicant is fatal to the belief of the ISV. Whilst not normally encountered, the ISV took alternative steps between 3 March 2017 and 29 March 2017 that it considered may alleviate its concerns, including the issue of a “concerns notice”. These steps apparently did not alleviate the ISV’s concerns.
[54] I am satisfied that the Applicant was still employed by the ISV immediately prior to 29 March 2017 and that the ISV still held its belief as to the seriousness of the Applicant’s conduct such that it justified immediate dismissal at this time. That the conduct might justify immediate dismissal should not be confused with a need to dismiss an employee immediately upon the conduct. Such an approach would be contrary to the need for the employer to carry out a reasonable investigation of the matter as established by the authority in Pinawin.
[55] In deciding if the belief was formed on reasonable grounds it is not the role of the Commission to determine if the conduct did in fact occur. Rather, it is the Commission’s role to determine if the belief of the ISV is reasonable. This determination must be made objectively.
1. Sexual misconduct allegations
[56] On 13 February 2017 Mr Khodr, as President of the ISV, met with members of the ICV and BOIV. At that meeting he was advised of allegations of sexual misconduct against the Applicant. Apparently the allegations were made in relation to, or dated back to, conduct in 2014 and 2015.
[57] The following day a number of members of the ISV, the ICV and the BOIV were shown details of the allegations in the form of the written statements of the women. Members of the ISV present at this briefing were not allowed to take a copy of the statements and did not meet the women who made the allegations. The ISV was not involved in investigating the allegations or putting those allegations to the Applicant.
[58] On 22 February 2017 the BOIV held a hearing into the allegations. The Applicant and his lawyer were present as were members of the BOIV and the BOIV’s lawyers.
[59] Mr Khodr gave evidence that no-one from the ISV was present at the BOIV hearing and he was, therefore, not aware of what happened in the hearing. The ISV was not involved in the hearing process and Mr Khodr had been briefed by the BOIV so that the ISV was aware of what the BOIV was doing.
[60] Mr Khodr did however state that the BOIV is highly regarded and he trusted in their integrity. 22
[61] Mr Khodr said that it was the intention of the ISV committee to deal with the sexual misconduct allegations against the Applicant after the BOIV had dealt with them but the Applicant did not give the ISV a chance to do so.
[62] The Applicant gave evidence that on 17 February 2017 he was provided with a letter dated 16 February 2017 in which he was advised that he was required to attend a hearing with the BOIV on 21 February 2017 to answer “serious allegations” made against him. 23 That hearing was subsequently held on 22 February 2017.
[63] The Applicant said that the BOIV never gave him the names of the women making allegations, their statements, statements of witnesses or copies of the texts messages he was said to have sent the women or the mobile phone number the messages had been sent from despite the fact that his solicitor had sought this information prior to the hearing. At the hearing the Applicant said he volunteered the names of the two women who he thought the BOIV might be referring to, one of whom he said was his fiancée (the relationship was subsequently broken off) and another whom he said he had no relationship with but who had tried to get money from him some years earlier.
[64] The Applicant said the BOIV did not directly ask him if he had sexual relations with either of the two women but rather just asked if he was married to anyone other than his wife.
[65] The Applicant said that his lawyer, who was present, was not allowed to speak on his behalf and that the BOIV members asked him four questions only. He said the hearing went for about half an hour.
[66] The Applicant also said that the hearing occurred a day after he was released from hospital and that, whilst he explained to two of the Imams present at the hearing that he was unwell, the BOIV still proceeded with the hearing.
[67] Mr Mustafa Sarakibi is the General Manager and Treasurer of the BOIV.
[68] Mr Sarakibi said that after the ICV alerted the BOIV to the allegations of the women, the BOIV met with the women. From this the BOIV determined to proceed to hear from the Applicant. Whilst Mr Sarakibi believes that Mr Nail Aykan communicated this to the Applicant he, himself, did not see the email sent to the Applicant.
[69] Mr Sarakibi’s evidence is that the allegations were put to the Applicant at the BOIV hearing on 22 February 2017. The hearing was attended by 12 to 13 Imams and went for about 45-60 minutes. He said that the BOIV questioned the Applicant but he denied the allegations. The BOIV assessed the women and determined that they were telling the truth.
[70] Mr Sarakibi agreed that the Applicant was not given copies of the complaints of the women even though he did ask for them and was told just to answer the questions put to him, however he was told who the women were. Mr Sarakibi agreed that the Applicant was told his lawyer could not speak for him. He was not aware the Applicant was unwell.
[71] Mr Sarakibi said that following hearing from the Applicant the BOIV had a good discussion about the matter, they assessed the women as credible witnesses, although they did not investigate the text messages said to have been sent from the Applicant or the phone number they were sent from. He said that following the hearing the BOIV did not undertake any further investigation of the matter.
[72] Mr Sarakibi agreed that the allegations against the Applicant dated back to 2014 and 2015. The complaints were raised with the BOIV by the ICV but he did not know when the ICV became aware of them.
[73] Immediately following the hearing on 22 February 2017 the members of the BOIV decided to terminate the Applicant’s membership of the BOIV. Mr Sarakibi said that this advice was conveyed to the Applicant through his lawyer. No copy of this advice was tendered in the Commission.
[74] Whilst the Applicant indicated that he intended to appeal the decision of the BOIV 24 he changed his mind and, on 24 February 2017, resigned as a member of the BOIV. On 25 February 2017 the BOIV issued a press release it said was in relation to “recent comments made against the Board on Friday the 24th of February 2017” by the Applicant. That statement also referred to the inquiry into the Applicant’s conduct undertaken by the BOIV and indicated that the “BOIV unanimously voted to terminate [the Applicant] as a member of the BOIV.”
[75] The Rules of the BOIV 25 set out the procedures to be followed in disciplinary matters including those in relation to “conduct…prejudicial to the interests of the Association”. These Rules require that a notice be given to the member stating the grounds for the proposed disciplinary action (r. 21(1)(b)); that the notice advise the member they can attend the disciplinary hearing in person or give a written statement prior to the disciplinary meeting (r.21(1)(d)); and that the notice be given no earlier than 28 days and no later than 14 days before the disciplinary hearing (r.21(2)).
Consideration of the sexual misconduct matter
[76] I am not satisfied that, considered objectively, the ISV could have reached its view on reasonable grounds that the conduct subject to the BOIV hearing of the Applicant was sufficiently serious to warrant summary dismissal of the Applicant.
[77] The only basis on which the ISV could have reached a view as to the seriousness of the allegations against the Applicant was because they saw the letters of complaint relied on by the BOIV and because the BOIV decided to terminate the Applicant’s membership of that body. Mr Khodr conceded that he was not aware of the processes of the BOIV and neither he nor anyone else from the ISV committee had been present during the BOIV hearing. There is no evidence that Mr Khodr or the ISV committee made any enquiries as to the process such that he, and the ISV, might be satisfied that procedural fairness had been afforded to the Applicant.
[78] On any view the BOIV process was hurried, lacked procedural fairness and was not conducted in accordance with its own Rules. 26 The Applicant was not given the grounds for the proposed disciplinary action, was not given the right to put any written statement in writing and was not given between 14 and 28 days’ notice of the disciplinary hearing. By not being given notice of the allegations against him the Applicant was effectively denied the right to put a written response to the BOIV. Even if the BOIV is a “quasi-judicial body” (which I very much doubt) it did not act like one. It did not provide the Applicant with the allegations and evidence against him in writing, it did not provide him with an adequate opportunity to provide any defence to the allegations, it proceeded with a hearing when the Applicant was unwell and it did not allow anyone to advocate on his behalf (although this is not a necessity for procedural fairness). Further, the BOIV did not issue any formal decision or provide reasons for its decision to terminate the Applicant’s membership of the BOIV.
[79] As is conceded by the ISV in its final submission, 27 membership of the BOIV is not mandatory for certification to act as an Imam. The ISV was aware of this.28 Cancellation of membership of the BOIV could not therefore be objectively viewed as disqualifying the Applicant from remaining Imam of the Mosque.
[80] Mr Khodr indicated that the ISV intended to conduct its own investigation of the complaints against the Applicant but there is no evidence that it sought to do so between 14 February 2017 when it became aware of the complaints and 29 March 2017, some six weeks later, when it terminated the Applicant’s employment.
[81] It is perilous to rely on the outcomes of an inquiry conducted by another organisation where that inquiry is conducted in private and its procedures not known and where procedural fairness is not afforded. I have no doubt that the BOIV is a respected body within the Islamic community but its haste and lack of proper process raises serious questions as to the reasonableness of any reliance being placed on its inquiry and decision.
[82] The absence of any enquiry by the ISV is a factor I have taken into account in relation to this aspect of the Applicant’s conduct. Given the seriousness of the allegations against the Applicant the failure to undertake an enquiry of its own is a substantial failure.
[83] For these reasons, I am not satisfied that the belief of the ISV with respect to the sexual misconduct allegations was reached on reasonable grounds.
2. Engaging in riotous behaviour
[84] The conduct the ISV committee considered was that the Applicant himself or through family members and supporters engaged in riotous behaviour outside the Mosque on 17 and 24 February 2017 and 3 March 2017.
[85] The complaints of the Applicant’s conduct at the Mosque on 17 and 24 February 2017 and 3 March 2017 need to be considered in the context of other actions taken by the ISV in relation to the Applicant’s attendance at the Mosque.
Suspension of the Applicant
[86] The Applicant said that on 15 February 2017 Mr Wahid contacted him and told him not to attend the Mosque and that if he did “we will contact the police.” 29
[87] On or about 16 February 2017 the ISV issued a statement which said:
The ICV and ISV on the advice and action taken by the BOIV to suspend [the Applicant], hereby announce that [the Applicant] has been suspended as an Imam and has been removed from performing any duties or activities related to the position of Imam of Preston Mosque and as a member of the BOIV indefinitely. 30
[88] That document is not dated. The Applicant said that it was hand delivered late in the evening to his brother who was at the Applicant’s house on 16 February 2017 31 and that his brother gave the document to him the next morning.32 The Applicant said there was no signature on the document. He said that the document advised him not to go to the Mosque the next day. The Applicant says he decided to ignore the document although he does appear to agree that he had been suspended by the ISV.33 Further, the Applicant did not seek any further clarification of his status from the ISV.
[89] The Applicant said that he was “suspicious” of the letters sent to him in the week of 13 February 2017. He also claimed that he did not know on 17 February 2017 that he had been suspended from his position as Imam at the Mosque (despite acknowledging receipt of the document which was delivered to his home on 16 February 2017). He said he became aware that he was suspended from the Mosque after he attended there on 17 February 2017.
[90] The Applicant agreed that he was aware by 24 February 2017 that he had been suspended from his position as Imam at the Mosque.
[91] Mr Khodr said that in suspending the Applicant from his duties he assumed the Applicant would stay away from his workplace (i.e. the Preston Mosque) as is normal practice when an employee is suspended.
17 February 2017
[92] The Applicant said that when he spoke to the two new ISV committee members on 13 February 2017 he told them that if action was not taken by the ISV about the apparent misappropriation of money that had been collected but not distributed then he would raise the issue with the members of the Mosque. As nothing appeared to have been done and the Applicant considered he had been warned off (by the threat of 50 women making allegations about him), the Applicant apparently decided to take the action he had indicated he would take.
[93] The Applicant said that he expected the ISV committee would develop a process to resolve the issues that he had raised. Instead, nothing occurred and the matter was apparently not discussed at the meeting of the ISV on 14 February 2017.
[94] The Applicant said that he did not attend the Mosque or its grounds on 17 February 2017. 34 It is not in dispute however that the Applicant went into the vicinity of the Mosque and gave a speech to members of the congregation who had been encouraged to come out of the Mosque by the Applicant’s son35 to listen to the Applicant. The Applicant gave a speech standing on top of the fence of a property adjacent to the Mosque (a property apparently owned by the Mosque). That speech was filmed by various individuals and transcribed.36 In that speech the Applicant:
• Said that the ISV was “fake and illegal”, there were no “real elections, real members…people are appointed, no voting.” He called on those listening to “make a new committee that is official, in accordance with our Deen (sic).” 37
• Accused the ISV committee members of being thieves and of engaging in money laundering. 38
• Said he had spoken at events where the ISV would “collect thousands and only give 2000 or 1000 or maybe 500 dollars or maybe 3000 dollars to the mosque…” 39
• The members of the ISV wanted him to “lie about the money that gets stolen” and that they “launder money” and smuggle money. 40
• That he was not allowed to speak inside the Mosque. 41
• That he had been threatened in his home by the ISV committee members. 42
[95] The Applicant agreed that his language was inflammatory but said that “[t]his is the nature of giving the speeches or the sermons…when you give sermon it’s usually in a high tone.” 43
[96] The video of the speech 44 shows a reasonable sized crowd outside the Mosque listening to the Applicant speak while he is standing on a fence. The crowd is reasonably quiet and they appear to be listening respectfully with some limited raised voices.
[97] Mr Khodr gave evidence that he became aware that there might be trouble at the Mosque on 17 February 2017 as rumours spread very quickly within the Lebanese community. He said he called the police who suggested he arrange security but also said they would arrange for some police officers to attend. 45
24 February 2017
[98] The Applicant agreed that by 24 February 2017 he was aware that he had been suspended. 46 Whilst he agreed that he had, by this time, received the letter of suspension he “didn’t take it very seriously” and he “didn’t accept it as an official or legal” document.47
[99] He said that he went inside the Mosque at the request of “the worshippers”. 48
[100] The Applicant said that he arrived at the Mosque and parked his car about 200 metres away. A group of worshippers came to meet him and escorted him into the Mosque. He went to the Minbar and gave the Friday sermon. 49
[101] Video evidence 50 in relation to this day, including from ACA,51 shows the Applicant and his supporters entering the Mosque grounds. Police were present. The crowd was large and rowdy with a fair bit of jostling occurring both before and on entering the grounds. The Applicant was surrounded by what can only be described as a “wall” of people who moved with him as he entered the grounds.
[102] Mr Khodr said that he took no action to stop the Applicant entering the Mosque because he thought it would just cause further disruption.
[103] Following an interview with the Applicant by ACA recorded that morning (see below), the ACA interviewer and a camera operator attended the Mosque prior to the Applicant’s arrival. During the subsequent broadcast of the interview on ACA the reporter said that there was going to be a demonstration at the Mosque against the ISV that day. It is reasonable to infer that he was advised of this by the Applicant, his brother or his supporters. How he would otherwise have come into that knowledge is otherwise unclear.
[104] Once inside the Mosque the Applicant gave a speech in which he spoke of matters before the BOIV and actions of the ISV. That speech was partly recorded and transcript of a translation provided. 52
3 March 2017
[105] Mr Khodr gave evidence that on 3 March 2017 the Applicant and his supporters “again disturbed the normal conduct of the mosque. [The Applicant] was outside on the side road…He brought in some men who are known to be underworld figures….They came inside the mosque. They said words to indicate that they wanted to stop the sermon happening…They effectively stopped the sermon.” 53
[106] Mr Khodr agreed that he did not actually see the Applicant but was told by another member of the congregation that he was outside the Mosque. He said he spoke to those who wished to stop the sermon. Mr Khodr said that one of the underworld figures said the Applicant’s name and attempted to ring him.
[107] The Applicant said that he was praying at a different mosque on 3 March 2017.
Consideration of riotous behaviour
[108] The ISV considered that it had issued a clear direction to the Applicant that he was suspended from his duties as Imam.
[109] The Applicant was aware of the suspension. On 17 February 2017 the Applicant did not attempt to enter the Mosque but instead had worshipers called out of the Mosque by his son. Whilst he equivocated in his evidence as to his knowledge of the suspension, I am satisfied that he was aware of the suspension before he attended the Mosque on 17 February 2017 but, as he did on 24 February 2017, he chose to ignore it. My conclusion is supported by the words of the Applicant in his speech from the fence where he said “I’m not allowed to speak inside mosque, but I will speak out anyway” 54 and that “[t]he words that I am speaking is what denied to speak on the Minbar and they called the ‘police’ on me saying I wasn’t allowed to speak.”55
[110] Even though the conduct of those who came out of the Mosque to hear the Applicant was apparently orderly it is conceivable that the ISV did not know that this would be the case. However, objectively viewed, the congregation was called out of the Mosque by the Applicant’s son in an action designed to disrupt the orderly conduct of Friday prayers and to drive support for the views of the Applicant.
[111] The ISV’s belief as to the seriousness of the conduct of the Applicant is evidenced by Mr Khodr contacting the police and arranging appropriate security. 56
[112] The conduct at the Mosque on 24 February 2017 was not orderly as was observed on 17 February 2107. The concerns of the ISV as to the conduct of the Applicant and his supporters were reasonably based given what was observed on this day. It is disingenuous to suggest that those engaging in the conduct on 24 February 2017 were not supporters of the Applicant. The Applicant knew he was suspended from his position as Imam of the Mosque. I do not accept the Applicant’s evidence that he did not know there would be crowds at the Mosque on 24 February 2017. He had decided to attend the Mosque that day and give a sermon from the Minbar even though he was suspended. It beggars belief that he did not know those who supported him would be there to assist him entering the Mosque. Even if he had not known and thought the crowd approaching his car may not have been friendly, he could have left. He was not compelled to go to the Mosque but he went anyway.
[113] By Friday 3 March 2017 there had been some disturbances at the Mosque on the previous two Fridays. Mr Khodr had reason to consider that the request from two “underworld” figures that the sermon not proceed on this Friday was, in some way, connected with the Applicant. That one of the people requesting the sermon not proceed indicated that he would call the Applicant cemented this belief. That Mr Khodr did not see the Applicant does not detract from the belief that he thought the Applicant was behind the request. In the circumstances of the conduct on the previous two Fridays the belief of the ISV with respect to the seriousness of the conduct on 3 March 2017 was reasonable.
[114] Objectively considered, the ISV had reasonable grounds to assume that the Applicant was aware of but did nothing to stop the behaviour at the Mosque on 17 and 24 February 2017. The speeches given by the Applicant, particularly that on 17 February 2017, were designed to garner support to his cause at the expense of support for the ISV committee. The conduct of 17 and 24 February 2017 and 3 March 2017 may well have been considered “riotous” in that it otherwise disturbed the orderly conduct otherwise expected of Friday prayers.
[115] Whether the Applicant did engage in or cause riotous conduct or did bring the ISV committee into disrepute are not factual matters I need to resolve. I only need decide if the ISV committee reached its belief of the Applicant’s conduct on reasonable grounds.
[116] Given the extent of the video evidence I am satisfied that the ISV had reasonable grounds to reach its view of the Applicant’s conduct.
3. Claims of misappropriation of money
[117] The Applicant first aired his claims as to the misappropriation of funds in his speech on the fence outside the Mosque on 17 February 2017.
[118] Prior to attending the Mosque on 24 February 2017 the Applicant recorded an interview with the television program ACA. The ACA program aired on 28 February 2017. The Applicant agreed that during that interview he repeated that the ISV were thieves, criminals, money launderers, money smugglers gangsters and had stolen millions of dollars. 57 Footage of the ACA interview58 showed the Applicant saying:
• Millions of dollars had been collected;
• The money had gone missing;
• There was a problem with money laundering;
• The money was collected from worshippers and was for refugees both in Australia and overseas;
• The Applicant had evidence of his claims.
[119] The Applicant’s brother, Mr Souleiman Abou-Eid, said that neither he nor the Applicant had instigated contact with ACA rather that the Applicant had been contacted by ACA. Mr Souleiman Abou-Eid said that at first ACA was going to do a program on the sexual misconduct allegation but then decided to do a story on misappropriation of funds. He said ACA contacted his brother on the Tuesday or Wednesday prior to 24 February 2017 and set up the interview. 59
[120] The claims of misappropriation of money from the Mosque that the Applicant claimed had been raised for various charities or to support various mosques aired in the ACA interview were of a very similar nature to those made by him in the speech on 17 February 2017.
Consideration of claims of misappropriation
[121] The ISV concluded, based on the Applicant’s participation on ACA, that the Applicant made “outrageous claims” of misappropriation of funds on ACA.
[122] These formed part of the reasons for dismissing the Applicant. Objectively viewed, the ISV formed its belief on reasonable grounds.
[123] The video of the ACA program broadcast on 28 February 201 is evidence that:
• The Applicant made accusations of misappropriation of money by the ISV committee members;
• The Applicant accused the ISV committee of engaging in money laundering;
• The Applicant accused the ISV committee of stealing millions of dollars;
[124] The views of the ISV that the Applicant made such claims are, objectively considered, reasonably based. It heard the claims in the Applicant’s speech of 17 February 2017 and heard them repeated again on ACA on 28 February 2017.
[125] Whether these claims are true is not a matter I need to decide. I need do no more than determine if the ISV reached its belief on reasonable grounds. I am satisfied that, in relation to this matter, it did so.
4. Making statements that the Applicant was conducting a political campaign against his employer
[126] This relates to comments made by the Applicant in his speech on 17 February 2017 that the committee of the Mosque was improperly elected and/or appointed and that it should be replaced. In that speech the Applicant said, in reference to the ISV committee, that “they’ve just self-appointed themselves, as leaders, without any of us permission…” 60 and that:
Questions to you, who gave them the right to be members of the committee? Who had elected them? How did you get there (the mosque)? Who had elected you? At 2013 there were no elections, 2014 no elections, 2015 no elections 2016 no elections as well, there’s no managers, no partners, there’s literally nothing, they are like gangs/mob controlling the Mosque, they’ve just self-appointed themselves, no one gave them authority to represent us. 61
[127] The Applicant concluded that:
This committee is fake and illegal, with no real elections, no real members, no managers, no partners, people are appointed, no voting. So now I’m asking you to get involved, and make a new committee, that is official, in accordance with our Deen [sic], it’s people to be educated, understand Islam and are experienced…have you ever seen one of them praying at mosque…the rest of them has nothing to so with religion nor mosque, we’ve had enough of ignorance, we want people who know how to speak and act. 62
[128] This sentiment was repeated in the Applicant’s speech given from the Minbar on 24 February 2017 when the Applicant said that “…the love of fame and fortune…has controlled their minds and their souls and made them think they are unbeatable they had a disease called ‘megalomania’.” 63
Consideration
[129] On the basis of these statements I am satisfied that, objectively viewed, the ISV reached a reasonable belief that the Applicant was organising against his employer and encouraging his supporters to replace the ISV committee.
[130] Again, whether this is actually what the Applicant was doing is not the matter I need to decide.
[131] I am satisfied that the conduct of the Applicant comes within the definition of serious misconduct as contained in Reg. 1.07 of the FW Regs.
[132] In particular, I am satisfied that the Applicant’s conduct could be viewed as “wilful or deliberate” and was inconsistent with the continuation of his contract of employment. It could also be seen to create a risk to the reputation of the ISV’s business.
[133] As I have stated above, it is not necessary for the Commission to be satisfied that the conduct did in fact occur but rather, if the ISV formed such a belief and had reasonable grounds for doing so.
[134] The Applicant says that I should balance the claims of the ISV against the reasonable belief that the Applicant had as to the conduct of the ISV committee, particularly in relation to the missing funds.
[135] Whilst I accept that the Applicant held a belief as to missing funds, there is no material before the Commission that would allow for any reasonable conclusion to be drawn on this matter.
[136] I do accept that there has been an unexpected confluence of events in relation to the Applicant. At the time the Applicant raised with new members of the ISV committee issues to do with missing money, allegations as to sexual misconduct that appeared to date back some time, (although the dates the allegations were made is not known) were raised with the BOIV by the ICV.
[137] I have also considered the period of time between the incidents outlined above that the ISV said gave rise to the decision to dismiss the Applicant and the date of dismissal. The incidents ended on 3 March 2017. It was a further three weeks before the ISV issued the notice of termination of employment. I am aware however that within this time the ISV committee appears to have taken other steps to try and resolve its issues with the Applicant. This included the “notice of concerns” and legal steps by Mr Khodr.
[138] Whilst these may be relevant considerations should I be considering if the dismissal was harsh, unjust or unreasonable, I do not consider them a necessary consideration in deciding if the summary dismissal provisions of the Code were satisfied.
[139] In the circumstances I am satisfied that the dismissal of the Applicant was in accordance with the Code in that the ISV had reasonable grounds to conclude that the Applicant’s conduct as set out above was sufficiently serious to justify immediate dismissal. Having reached this conclusion the Applicant cannot, by virtue of the operation of s.385 of the FW Act, have been unfairly dismissed.
[140] The application for relief from unfair dismissal is therefore dismissed. An order 64 to this effect will be issued with this decision.
COMMISSIONER
Appearances:
C. Serpell, of counsel, for Mohamad Abou-Eid.
J. Catlin, of counsel, for The Islamic Society of Victoria Inc.
Hearing details:
2017:
Melbourne:
December, 11, 12, 13, 14.
2018:
Melbourne:
January 31.
April 16, 17, 18, 23, 24.
July 4.
Printed by authority of the Commonwealth Government Printer
<PR609220>
1 The “ISV” and “ISV committee” were used interchangeably during proceedings.
2 Exhibit R3.
3 Exhibit A14.
4 Exhibit A33.
5 Exhibit A20, paragraph 41 and Exhibit A33.
6 Exhibit A16.
7 Exhibit A15.
8 The pulpit.
9 At the request of the Applicant the BOIV hearing was adjourned for a day so that his lawyer could attend.
10 For the purposes of Part 3 of the Defamation Act 2005 (Vic).
11 Exhibit A26.
12 Exhibit A27
13 Exhibit A17.
14 Fair Work Act 2009, s.591.
15 Re: Construction, Forestry, Mining and Energy Union, PR935310 at [36].
16 U2017/3520.
17 U2017/8462.
18 Exhibit A18, r.20.(2)(a) of the BOIV Rules.
21 Filed on 29 November 2017.
22 Transcript PN6708.
23 Exhibit A14.
24 Exhibit A33.
25 Exhibit R16.
26 See exhibit R16.
27 ISV closing submissions 18 June 2018.
28 Transcript PN6058-6065.
29 Exhibit A19, paragraph 18.
30 Exhibit A15.
31 Transcript PN798-800, PN803.
32 Transcript PN809-810. Note the documents referred to at PN809 are exhibits A14 and A15.
33 Transcript PN3207.
34 Exhibit A19, paragraph 21 and exhibit A20, paragraph 13.
35 Transcript PN3237-3238.
36 Exhibit R7.
37 Ibid, paragraph 16.
38 Ibid, paragraph 2.
39 Ibid paragraph 4.
40 Ibid paragraph 6.
41 Ibid paragraph 6.
42 Ibid paragraph 11.
43 Transcript PN3264.
44 Exhibit R4.
45 Transcript PN5837.
46 Transcript PN1394.
47 Transcript PN1095-1096.
48 Transcript PN1398.
49 Transcript PN1085, PN1087, PN1090, PN1093.
50 Exhibit R9.
51 Exhibit R6.
52 Exhibit R8.
53 Exhibit R11, paragraphs 77-80.
54 Exhibit R7, paragraph 6.
55 Ibid paragraph 9.
56 Transcript PN5837.
57 Transcript PN1451.
58 Exhibit R6.
59 Transcript PN5573, PN5576.
60 Exhibit R7 paragraph 2.
61 Ibid, paragraph 13.
62 Ibid, paragraph 16.
63 Exhibit R8, paragraph 2.