A dismissal may be regarded as unfair when effected as a summary dismissal but perfectly fair if attended with notice or pay in lieu.
“Overall consideration – whether unfair
[75] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was unjust.
[76] While there was a sound reason – based upon the directive from the university and no alternative employment options – to terminate Mr Siddiqui’s employment, it was not necessary for him to have been summarily dismissed. The university was entitled to issue a directive to the employer, without any finding of fault on the employer’s behalf. So much can be accepted in ordinary commercial relationships between a service provider and client. The consequence of this no-fault contractual right exercised by the university was that Mr Siddiqui’s (and another) employment was no longer viable. But that does not allow the employer to terminate Mr Siddiqui’s contract of employment summarily; the employer was required to give notice and it did not do so. (And to repeat my observations above, while the employer faintly appears to rely upon Mr Siddiqui’s misconduct as a basis for dismissal, this is ultimately not what it did and nor did it provide the necessary procedural fairness if that is what its intention was.)
[77] As the other jurisdictional requirements under s 385 have been met or are not relevant, I am satisfied that Mr Siddiqui was unfairly dismissed from his employment.
Remedy
[78] Having found that Mr Siddiqui was unfairly dismissed, I now consider remedy. I am not satisfied that it would be appropriate to make an order for reinstatement in circumstances where the employer was directed to remove Mr Siddiqui from the university campus and Mr Siddiqui’s own conduct leading to that direction. Even if there were available positions, I would not order reinstatement due to Mr Siddiqui’s deeply rooted suspicion of the motives of management and work colleagues. By way of but some examples from many, Mr Siddiqui accuses the respondent
of “mismanagement and bias”, “favouritism” (to others), and being “targeted” among other similar allegations.
[79] I am satisfied that an order for compensation in lieu of reinstatement is appropriate, and that the appropriate amount is one week’s wages in lieu of the period of notice that Mr Siddiqui ought to have been provided. I base this conclusion on the factors in s 392 of the Act. Primarily, Mr Siddiqui would have been employed for no longer than his correct notice period, had notice been given.
[80] The contract in evidence states this period was one week. This is the period I find Mr Siddiqui would have continued to work for or that he would have been paid in lieu. None of the factors in s 392(2) would operate to discount this amount to a lesser period.
[81] For the purposes of s 394(3), while I am satisfied that Mr Siddiqui’s misconduct contributed to the employer’s decision to dismiss Mr Siddiqui, I will not reduce the amount of compensation on account of that misconduct.
[82] Mr Siddiqui’s employment contract states that his ordinary hours are between 32 – 44 hours per week. I assume there is an averaging system of some kind, and his average ordinary hours are the midpoint, being 38 hours per week. Mr Boughton stated there was an eight week cycle.
[83] At the conclusion of the hearing, I requested the employer to provide copies of Mr Siddiqui’s most recent payslips. Mr Siddiqui was paid weekly, based on work undertaken. There was some considerable variation between the gross amounts of pay in the payslips, reflecting hours worked, whether the work was at day or night, whether the work was on a Sunday or a public holiday.
[84] The three most recent complete pay periods prior to dismissal showed gross pay of
$1,183.18 (for the week ending 14 January 2024), $893.73 (for the week ending 21 January 2024) and $862.50 (for the week ending 28 January 2024). An average of those amounts is appropriate and neither party made a submission about any alternative amount, which I calculate to be $970.80 for one week.
[85] I note that Mr Siddiqui asserts that he was being discriminated against and the more favourable shifts (eg weekends) were being given to others, such that his weekly amount should be higher. There was simply no coherent evidence of this beyond Mr Siddiqui’s assertion and I am not satisfied the amount should be increased on account of those claims. I note in his application that Mr Siddiqui states he was not correctly paid from 15 May 2023 to 20 August 2023. This is not a matter I can address for an unfair dismissal remedy.
Order
[86] In light of the above, I will make an order that the Respondent pay $970.80 gross less taxation as required by law to Mr Siddiqui in lieu of reinstatement within 14 days of the date of this decision. An Order4 giving effect to these reasons will be issued together with this decision.”
Siddiqui v Vicpro Security Pty Ltd [2024] FWC 1783delivered 23 July 2024 per Bell DP