DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Baldhir Singh
v
Indian Food Catering Pty Ltd T/A Amritsari Dhaba
(U2018/3873)

Application for an unfair dismissal remedy – Small Business Fair Dismissal Code – no reasonable grounds for summary dismissal – dismissal was unfair.

[1] On 12 April 2018, Mr Baldhir Singh (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to the termination of his employment by Indian Food Catering Pty Ltd (the respondent) on 27 March 2018.

[2] I issued directions for the filing of evidence and submissions, and heard the application on 13 July 2018. The applicant represented himself. With permission, I Peerzada, solicitor, appeared for the respondent.

The evidence

[3] The following people tendered written statements in these proceedings:

•  the applicant; 1 and

•  Dharma Gummi, director of the respondent. 2

[4] Both the applicant and Mr Gummi were cross-examined.

[5] I found the applicant to be an impressive witness. His oral evidence was clear, plausible and consistent both internally and with the contemporaneous documents that he filed with his statement.

[6] Mr Gummi’s written statement, on the other hand, contained a number of sweeping factual assertions about the applicant’s alleged misconduct, none of which were backed up by any specific evidence. I also note that Mr Gummi lives in Canberra and was not closely involved in the day-to-day running of the restaurant, except that he was at the restaurant on some weekends. This in itself limited the weight I could give to his evidence. For example, while he purported to give evidence about the applicant’s hours of work during the week, he also admitted that he was not present during this time. 3 In contrast to the applicant, I did not find Mr Gummi to be a credible witness. Therefore, where there is any inconsistency between the applicant’s evidence and that of the respondent, I prefer the former.

The facts

[7] The applicant was employed by the respondent to work as a cook in the respondent’s restaurant, ‘Amritsari Dhaba’ (the restaurant), from September 2016 until his employment came to an end in March 2018. 4

[8] The respondent company was originally owned by the applicant’s brother, but it was sold to Mr Gummi and Ms Seema Satpute around November 2017.

[9] The applicant said in his statement that he worked seven days a week from November 2017 to March 2018, i.e. including weekends. The only time he had off during this period at all was from about 25 December 2017 to 4 January 2018, when the restaurant was closed for renovations. 5

[10] During the hearing, I questioned the applicant about his working hours.

‘Tell me about - you said you worked seven days a week? Yes, seven days a week.

Did the restaurant ever close? Was there a day of the week it closed? No, it is seven days open.

From sort of after Christmas, because you say it closed down? Yes, just for I think for one or two weeks because for the renovating of the restaurant.

Are you saying you never had - not any day off? No, not any day off, no sick leave, nothing.

What hours of work did you work? I used to work like from Monday to - yes, Monday to Friday, around - I start at 2 o'clock till 10. If it's busy, it's 11, and Saturday and Sunday, I start at 10 o'clock till 11. Sometimes, if like we've got a party, then 1 o'clock, 12 o'clock.

Wasn't the restaurant supposed to close at 10 o'clock? The restaurant is closed 10 o'clock, but if you've got a customer, like if waitress are like getting order, if the restaurant is closing like at 10 o'clock, the kitchen should be closed at 9.30.

Yes? Like they can't close the restaurant like 10 o'clock if customer is already there. It's outside the staff - - -

Did you have to stay until the restaurant closed? Yes, because I was the only chef there, no one else.

…

Just to understand, during the week, did you have a break at all? You said you start at 2 o'clock in the afternoon and you would go until 10? Because we have to open the restaurant at 5 o'clock. If you open at 5 o'clock restaurant, business hours is 5 to 10, but I have to do the preparation, all the preparation, because only I was the worker there.

Yes? So I have to do all the prep. We have to start the oven, like tandoori oven, 4 o'clock. Before like one hour, we have to turn it on. So this takes time. I have to prep, then I have to cook.

So did you get a break? No.

And the same on the weekends? Did you get a break? We have sometimes break on the weekend, like 3 to 5 restaurant is closed, but if it's busy, we still run.’ 6

[11] The respondent’s representative did not seriously challenge this evidence during cross-examination, and I accept that it is accurate. In particular, I accept that the applicant generally worked at least 60 hours a week, spread over seven days, from November 2017 to March 2018 (apart from the brief period when the restaurant was closed for renovations).

[12] The contract of employment the applicant signed when he initially started working for the respondent in 2016 stipulated that he was employed on a full-time basis, and that his ordinary hours of work were 38 per week, for which he was to receive a gross annual salary of $56,000 plus superannuation. 7

[13] From the time Mr Gummi and Ms Satpute took over the restaurant, there was only one other kitchen hand employed part-time during the week and a waiter on weekends. The applicant was responsible not only for cooking but also for food preparation, opening and closing the restaurant, cleaning the kitchen and taking orders. 8 This is in contrast to the staffing situation when the applicant’s brother ran the restaurant. At that time, the restaurant was closed on Mondays, the applicant’s brother worked as a tandoori chef alongside him, and there was another chef as well.9

[14] The applicant signed a revised contract of employment in February 2018, which continued to provide that he was employed on a full-time basis for 38 hours a week – though it also included the following:

‘The Employee agrees to work reasonable additional hours beyond the standard 38 hours a week, which may include day, night, and weekend shifts.’ 10

[15] The revised contract still provided for an annual salary of $56,000 plus superannuation.

[16] In early March 2018, according to his statement, the applicant spoke to Ms Satpute regarding his hours of work. They had a conversation to the following effect:

‘[The applicant:] Seema, it has been a long time since I have been working these extra hours. I have not had a day off and you are also not paying me any extra money.

[Ms Satpute:] You know we are looking for someone and once we find them, we will give you a day off.’ 11

[17] In mid-March 2018, the respondent hired another cook, Bharat Ram, 12 to work in the restaurant.

[18] On Monday, 19 March 2018, the applicant had another conversation with Ms Satpute. He said words to the following effect:

‘[The applicant:] Are you going to pay me something for the extra hours that I have been doing?

[Ms Satpute:] We will discuss about this one with Dharma.

[The applicant:] I cannot keep working these long hours without any extra pay.’ 13

[19] Just before 6:30 pm on 19 March 2018, Mr Gummi sent the applicant an email, in which he said that he had come to know through Ms Satpute that he had refused to work that day. He continued:

‘I was shocked

I offered you $200 per week coz you are buying the groceries and the vegetables for the restaurant and then we always buy the vegetables and groceries every weekend and never complained after paying you

Now that we found suppliers I said I cant afford to pay you $200 a week

I cant find any reason why you are expecting/demanding $200 when you are not doing the shopping for the restaurant

I am paying you legally which has been accepted by you and me

As the business is running low I said I can’t afford to pay you $200

As you are saying that you can’t work on our agreed pay

Please let me know what are your expectations so that we can discuss further

I have been asking for your super and tax details – Could you please provide ASAP

My other request is please do not drink alcohol in the restaurant – I have advised you earlier as well (Please look into this issue)

All the rest…Looking forward to hear from you and see what’s the best thing to do

At the end of the day we need to work for the betterment of the business and follow the rules and regulations suits everyone’ 14

[20] The applicant’s evidence was that he never drank alcohol ‘on the job’ (by which he meant while working – cooking or preparing food). He would, on rare occasions, have a beer with his dinner after his shift had ended. 15

[21] The applicant was cross-examined about the allegation that he drank at work. He reiterated that he only had a drink after he had finished his work when he was having his meal, and even then it was only occasionally. 16 I accept the applicant’s evidence that he did not drink while he was working.

[22] The applicant replied to Mr Gummi’s email about 20 minutes later with an email message that included the following:

‘I did not refuse to do work i just asked seema about pay i m still working I started work when i reached at restaurant, i m not saying you are not paying to me i m just asking, do you think its worth it for me?? Im working as a curries chef and tandoori As well, this pay is not enough for me for both jobs as a tandoori and curries, I m happy to work with you with same pay but for one job, as a tandoori chef or curries, let me know which one do you prefer from me, I will send my super and tax details to u by tomorrow

Normally i don’t drink, if i drink i drink after my work if u want me to stop drinking in the restaurant I will never drink in restaurant not even after finish my work,

I do everything better for you, I put more eefort [sic] to get customers, I always talk to customers as well, our contract is 38 hours per week I do 60 and some time more, you pay me for 38 hours

And I have been asking you for one day off from last three months I m sick and tired working seven days, I am feeling tierd [sic] nowadays after long hours on weekend, you pushing me when you will find someone you will give me day off and you could not find anyone, this is not right, I feel sick nowadays ,

Please let me know what you decide it , i m happy to work on this pay as a tandoori or curries you can choose anyone’ 17

[23] On Tuesday, 20 March 2018, the applicant went to work as normal. 18

[24] In his written statement, the applicant said that Wednesday, 21 March 2018 was his first day off since the new cook had started. 19

[25] Just after 8:30 am that morning, the applicant received an email from Mr Gummi responding to the applicant’s 19 March 2018 email. This appeared to accept that the applicant had not refused to work, as Mr Gummi had previously alleged. Mr Gummi challenged the notion that there were two types of chefs and said if he had known this he would have reconsidered buying the business. He did say that he was open to discussing the applicant’s pay and asked him to send him an email with his expectations so that a new contract could be made ‘if the company afford your requirements’. With regard to the applicant’s response regarding his drinking, he wrote:

‘I HAVE NOTICED YOU DRINKING AND COOKING FEW TIMES WHEVER WE STAY IN THE RESTAURANT AND ADVISED YOU

HOWEVER

Thanks for that. I think we need to consider the safety of every one and I don’t want you to drink and drive (every one have families)’ [This referred to the applicant’s offer never to drink in the restaurant again even after work if this is what Mr Gummi wanted.]

[26] In relation to what the applicant had said about his hours of work, Mr Gummi wrote:

‘I don’t accept this

EITHER we asked you to work extra hours Nor you never advised you are extra working hours

I PAID YOU $200 A WEEK FOR YOUR TIME TO BUY GROCERIES AND VEGETABLES FOR THE RESTAURANT APART FROM THIS I DO SHOPPING EVERY WEEK BUT STILL I PAID YOU WITHOUT COMPLAINING

Seema already got the timesheets into the Picture and you need to enter time in and time out before and after the work

I have advised lot of times to close the restaurant by 10pm and I don’t want the restaurant open after 10pm in future BUT STILL YOU KEEP OPEN FOR YOUR FRIENDS

I THINK WE NEED TO STICK TO OUR REGULAR TIMINGS’

[27] With regard to having a day off, Mr Gummi said the first time the applicant had asked him about this was on 25 February 2018 and said that henceforth the applicant could have Tuesday night off each week. He also said that he did not expect the applicant to work more hours than were stipulated in his contract. 20

[28] The applicant responded to this email on Thursday, 22 March 2018. He emphatically denied drinking while working or keeping the restaurant open late for his friends. He said:

‘As far as my working conditions are concerned, I would just like to work in a stress free environment where my loyalty and hard work is appreciated and rewarded. I have not to date made any unreasonable demands and the only reason I brought up the issue of choosing me as tandoori chef or curry chef was due to the excessive number of hours that I have been having to work above my contract hours for no extra benefit or pay.’ 21

[29] He took up Mr Gummi’s offer to outline his expectations, writing:

‘As far as working beyond my contract hours is concerned, I am really happy to hear that you actually want me to only work my contract hours and are willing to give me a day off each week. For me to be able to do that and for the restaurant to still work successfully we will need to make some changes together.

1. We have to agree on what your expectations are as far as my job role is concerned. This will mean that we work together rather than against each other.

2. For me to stick to 40 hours per week, my shift would look like this…

Monday 5-10

Wednesday 5-10

Thursday 5-10

Friday 5-10

Saturday 10-10 (3-5pm break)

Sunday 10-10 (3-5pm break)

What this means is that someone would have to start at 4pm every day to do preparation and turn on the tandoor. I am happy to help by leaving a list each night of what needs to be prepared for the next day. I am also happy to provide you with a weekly grocery list so we can run this restaurant together in an efficient manner.

3. To close the business right on time, we need to make sure that orders are not taken in the last half hour of trading to allow the last customers to finish their meals and staff to commence cleanup. So last orders shouldn’t be taken after 9.30pm at night and 2.30pm on the weekend. To make sure that we stick to these timelines, I will need you to explain this to both Sukhdeep and Deepika as they are the ones who look after the front and take orders.

I just want to say that I am a pretty easy going person and these last few months have been quite stressful due to the changes. I really am happy working for you and honestly have the restaurants best interests at heart because if the restaurant does well, we all do well.

I want to work with you and not against you. It doesn’t feel good not to be trusted and appreciated. Emails like these don’t build or foster trust and respect. They create an environment of negativity. I would like to put all this negativity behind us and move forward in a better work environment.

I look forward to catching up with you on the weekend.

Hope you have a great week. 22’

[30] The applicant received no reply to this email. 23

[31] On Friday, 23 March 2018, the applicant had a brief discussion with Mr Gummi who told him he had had no time to reply to the applicant’s email. 24

[32] On Saturday, 24 March 2018, the applicant again raised the issue with Mr Gummi who said he would get a response later that day, and Ms Satpute, who told him he would get a response before he started his shift the next day.

[33] The applicant said in his statement that he went to work on Sunday, 25 March 2018 ‘determined to find a solution to this ongoing situation’. He entered the restaurant and approached Mr Gummi, and they had a conversation along the following lines:

‘[The applicant:] Have you decided yet or not?

[Mr Gummi:] You want an immediate decision but we cannot decide this so quickly.

[The applicant:] We have been talking about my working conditions for quite some time now. I think that you have had lots of time to think.

[Mr Gummi:] We still need more time.

[The applicant:] In that case, I also need a couple of days to consider if I can continue to work like this. You have Bharat Ram here today so it should be okay for you to run the restaurant with him. If you need me, give me a call and I will come and help out.

[Mr Gummi:] Okay.’ 25

[34] The applicant was cross-examined about what happened next. It was suggested to him that he in effect left the restaurant in the lurch that day, as he was the only chef that could make kulchas (the restaurant’s signature dish). The applicant replied that Bharat Ram (the other chef who was working at the restaurant that day) was in fact a more senior chef than he, 26 and that indeed, he had learned to make kulchas from Mr Ram.27 I accept this evidence of the applicant.

[35] In his oral evidence, the applicant expanded on what occurred on Sunday, 25 March 2018. 28 I am satisfied that the applicant received permission from Mr Gummi to take a couple of days off, as he was tired from working seven days a week, and Mr Ram could cover the work. I also accept that the applicant did say that he was nevertheless available to help if needed.

[36] On Tuesday, 27 March 2018, the applicant unsuccessfully tried to call Mr Gummi twice. When he was unable to contact him that way, sent him the following email:

‘Hi Dharma

Thank you for giving me time to think about my work situation and the recurring issues that we have been having over the last few months. At this time You also asked me for some time to think.

I have had time to stop and think over the past 48 hours and am happy to return to work under the following work conditions.

1. I will work at my agreed rate of pay as discussed on Sunday morning with one further qualification. As promised on Sunday, I accept my current pay plus $100 monthly in lieu of my phone.

2. My hours of work will be 38 hours per week as original agreement. If at any time you need me to work extra, I am happy to do that for an additional pay at $30 per hour. I do not expect you to give me any additional hours but am happy to help out where you need me to. I will not stay over my shift times and nor demand this additional money. It will be by your request only.

3. And now for the last condition…I was very upset that you accused me of having a drinking problem when I had none. I have never drunk while working or cooking. As I explained earlier, I have on a couple of occasions had ONE beer with my meal at the end of my shift. This does not constitute drinking.

You also said via email that you spoke with me regarding this. When I confronted you regarding this on Saturday, you said that you had not spoken with me but sent me a text. I told you at that stage that I did not receive any such message and asked you to take a screenshot and send it to me. You have not done so yet.

I take false accusations like these very seriously as they are a slur against my character. Can you please either send me the screenshot or send me an email retracting your false accusations. I will be happy to return to work straight after.

I am sure that you understand that working in a stressful situation is not healthy for anyone. Having a boss who makes false accusations and then says that ‘I take things very personally’ is not an ideal scenario.

However I am willing to put the past behind and start over if my above work conditions are met. I am sure you will agree that I have made no unreasonable requests. Just have asked for fair and equitable pay and treatment and respect in the workplace.

If you have had time to think things over and would like me to return to work, please send me an email to confirm so that I am able to do so. I am available and free to return as of tonight. I will take my one day off for this week as yesterday to even things out.

I await your response for further action.

Yours sincerely

Baldhir Singh’ 29

[37] Mr Gummi did not respond to this email. Instead, at 4.13 pm that afternoon he sent the following email dismissing the applicant:

‘Dear Baldhir,

I am writing to you with regards to your unprofessional demand and behaviour on Sunday 25^th March and walking away from duty when I refused to accept your unprofessional and unethical demand and holding the business to ransom.

This is in spite of the knowledge that Saturday and Sunday are the most busy days for our business and any hindrance to the smooth operation causes repairable (sic) damage to the restaurant.

This behaviour did cause damage and hardship to the business and put us in a bad situation and this is not acceptable to me.

I consider this action of yours to as a way to sabotage the reputation and working of the restaurant and consider it as your resignation and I would like to let you know that your contract is TERMINATED effective today i.e. 27^th March ’18.

I request you NOT to enter into the restaurant premises as your contract is TERMINATED and I will solely hold you responsible if any damage is caused to any furniture or fixtures.

Also, under no circumstances are any equipment or for that matter anything to be moved or taken away from the restaurant without my written permission.

I want the Spare key for the restaurant and backside side gate to be returned back to me asap.

I also want you to desist from calling any of my existing staff to discuss the restaurant situations as it against their privacy.

For your information: I did visit the Black town police today to discuss this whole situation.

Thanks,’ 30

[38] In his written statement, Mr Gummi said that after he took over the business ‘the applicant started to unreasonable demands [sic] about his pay and work’. 31

[39] Mr Gummi said in his statement that he had verbally and in writing warned the applicant:

‘in relation to his failure to perform his duty at workplace, this includes but not limited to

•  Drinking at workplace while on shifts

•  Providing free food to his friends and family

•  Taking catering order on private without notifying

•  Harass the other staff members

•  Refuse to work as chef/cook and demands another cook/chef despite working mainly as a chef with the previous owner and performing same duties’ 32

[40] The respondent provided no evidence to back up these claims. Nor did Mr Gummi give these as reasons for dismissing of the applicant in his email of 27 March 2018. I am satisfied that there is no substance to any of them.

[41] In relation to the applicant’s ‘unreasonable demands about his pay and work’, I asked Mr Gummi whether he was aware that a chef or cook employed by the respondent to work in the restaurant would be covered by the Restaurant Industry Award 2010 (the award). Mr Gummi said he had never heard of the award. 33

Consideration

[42] It is not in dispute that the applicant is a person protected from unfair dismissal. 34 I am satisfied that he is so protected.

[43] Section 385 of the FW Act provides:

‘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.’

[44] Section 385(a) of the FW Act is satisfied. Even though Mr Gummi seemed to suggest at times that the applicant chose to leave of his own accord because he was unhappy with his pay, 35 Mr Peerzada ultimately conceded36 – and it is clearly established by the evidence – that the applicant was dismissed.

[45] Section 385(d) of the FW Act is satisfied. Neither party contended that the applicant had been made redundant.

[46] The respondent submitted that it is a small business. The applicant did not dispute this. Accordingly, I must decide whether the applicant’s dismissal was consistent with the Small Business Fair Dismissal Code (the Code).

[47] Section 388 of the FW Act provides:

‘388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.’

[48] The Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009. It relevantly states:

‘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.’

[49] In Pinawin, 37 the Full Bench said:

‘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 the 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.’

[50] The conduct about which Mr Gummi was concerned and which led him to dismiss the applicant is not entirely clear in this case. Mr Peerzada suggested in the course of cross-examining the applicant that the respondent was forced to dismiss him because ‘there was a serious allegation against the staff members.’ 38 In his statement, Mr Gummi alleged various misdemeanours by the applicant: drinking while at work, providing free food to friends and family, harassing other staff members and refusing to work as a chef. None of these matters were referred to in the respondent’s email terminating the applicant on 27 March 2018. I am not satisfied that the respondent genuinely believed that this conduct was sufficiently serious to justify immediate dismissal. Rather, I think that all this alleged misconduct has been put together retrospectively to try to justify a dismissal that actually occurred for other reasons.

[51] In his email terminating the applicant’s employment, Mr Gummi referred to the applicant’s ‘walking away from duty when I refused to accept your unprofessional and unethical demand and holding the business to ransom’. 39

[52] While it is conceivable that the respondent genuinely believed this conduct was sufficiently serious to justify summary dismissal, any such belief was not held on reasonable grounds.

[53] The events of Sunday, 25 March 2018 must be understood in the context of the applicant’s hours of work and pay over the preceding months. As I have already noted, the applicant was working 60 hours a week, spread over seven days, every week. For this, he was receiving a salary of $56,000 (plus superannuation), apparently supplemented on a temporary basis by $200 a week to buy groceries and vegetables for the restaurant.

[54] Mr Gummi seemed blissfully unaware of the respondent’s obligations to the applicant under the award. Amongst other things, he consistently failed to give the applicant a minimum of eight full days off per four-week period (clause 31.2(e)). Even making relatively conservative assumptions about the applicant’s proper classification under the award and the breaks he received within shifts, I also estimate the applicant was being underpaid by several hundred dollars a week for the hours he was putting in.

[55] In these circumstances, it is completely wrong to portray the applicant’s requests in relation to his pay and hours of work as unreasonable or ‘holding the business to ransom’. 40 Rather, the applicant’s proposal about hours of work and pay in his email of the preceding Thursday, 22 March 2018, were impeccably reasonable and considered. Moreover, they were in direct response to a request from Mr Gummi. Indeed, even if the respondent had agreed to all the applicant’s requests, it would still have left him with some conditions inferior to the minimum standards set out in the award.

[56] I accept the applicant’s evidence that Mr Gummi had given him permission to leave work on Sunday, 25 March 2018. But even if this had not been the case, it was hardly unreasonable for the applicant to take that day and the next day off work in a context where he had been working seven days a week, week in, week out, for months – in clear breach of his rights under the award to an average of two days off a week.

[57] I find the applicant’s dismissal was not consistent with the Code. Accordingly, I must consider whether the applicant’s dismissal was harsh, unjust or unreasonable.

[58] 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.’

Valid reason: s.387(a)

[59] For the reasons outlined above, the respondent had no valid reason to dismiss the applicant.

Notification of that reason and opportunity to respond: ss.387(b) and (c)

[60] The applicant was only told of the reasons for his dismissal in Mr Gummi’s email of Tuesday, 27 March 2018, and was not given any opportunity to respond.

Unreasonable refusal of support person: s.387(d)

[61] The applicant was dismissed by email. There were no relevant meetings and so the issue of a support person does not arise.

Warnings about unsatisfactory performance: s.387(e)

[62] This criterion is not applicable to this application. The applicant was dismissed for alleged misconduct, not poor performance. Indeed, Mr Peerzada said that ‘[h]e is a good chef.’ 41

Size of employer’s enterprise and absence of human resource management expertise: ss.387(f) and (g)

[63] The respondent is a small business. There is no evidence that it has in-house human resource management expertise, or otherwise has access to such expertise. However, that does not excuse the shoddy way the applicant was treated.

Other relevant matters: s.387(h)

[64] In determining whether the applicant’s dismissal was unfair, it is relevant that he worked very long hours without any days off, but only received a salary of $56,000 per year as at the date of his dismissal. I have already found that the way he was employed was not consistent with the award. It is also important to note that the applicant was employed pursuant to a 457 visa sponsored by the respondent. This means his dismissal had more serious consequences for him than it would have for a permanent resident. He clearly runs a risk of having to leave the country unless he can find another employer willing to sponsor him.

[65] I am satisfied that the applicant was unfairly dismissed. The termination of his employment by the respondent was unjust and unreasonable.

Remedy

[66] I am concerned that I have insufficient information before me properly to deal with the issue of remedy. I will invite submissions from the parties to enable me to deal with this issue.

SENIOR DEPUTY PRESIDENT

Appearances:

B Singh, the applicant, in person.

I Peerzada, solicitor, for Indian Food Catering Pty Ltd T/A Amritsari Dhaba.

Hearing details:

Sydney.

2018.

July 13.

Printed by authority of the Commonwealth Government Printer

<PR609923>

 1   Exhibits 1 (statement in chief) and 2 (statement in reply).

 2   Exhibit 3.

 3   PN311.

 4   Exhibit 1 [1].

 5   Ibid [4].

 6   PN67-74, PN79-82.

 7   Exhibit 1 attachment G.

 8   Ibid [4].

 9   PN104.

 10   Exhibit 1 attachment G.

 11   Ibid [8].

 12   Ibid [10].

 13   Ibid [11].

 14   Ibid attachment A.

 15   Ibid [12].

 16   PN182-7.

 17   Exhibit 1 attachment B.

 18   Ibid [14].

 19   Ibid [15].

 20   Ibid attachment C.

 21   Ibid attachment D.

 22   Ibid.

 23   Ibid [16].

 24   Ibid [18].

 25   Ibid [22].

 26   PN203.

 27   PN204-6.

 28   PN209-14.

 29   Exhibit 1 attachment E.

 30   Ibid attachment F.

 31   Exhibit 3 [9]

 32   Ibid [10].

 33   PN329.

 34   Fair Work Act 2009 (Cth) s.382.

 35   PN340.

 36   PN166.

 37   Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 [29].

 38   PN166.

 39   Exhibit 1 attachment F.

 40   Ibid.

 41   PN174.