Haider Ali v Chobani Pty Ltd. (U2019/1734) [2019] FWC 4406. McKinnon, C. 25 June 2019

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4406.htm

This is matter of conflicting stories, a company’s failure to Advise of its policies, and the tragic circumstances facing the applicant.

 

Read on…

 

Haider Ali was employed as a Storeperson from 5 June 2017 until 11 February 2019. He commenced working at the premises as a casual contractor to Chobani from 2013 until he was employed directly by Chobani in 2017. On 11 February 2019, his employment was terminated on the grounds of serious misconduct and breach of company values and behaviours.

 

Mr Ali’s defence was that the dismissal was unfair because the events have been mischaracterised, he was bullied, intimidated and provoked, he was underpaid and under immense work pressure and he was treated differently to the other employee involved in the incident who is a union member.

 

There was an argument over work whereby Ali requested the assistance of another employee, Rob Cushen. On Ali’s recollection, Cushen refused to assist him saying “No, you do it”. Ali then said, “Can you finish what you started”. Cushen replied in words to the effect “you’re not my f**king supervisor”. Ali says Cushen threatened him that he would “go to HR and Ali would lose his job”. He says he replied, “I will take you down with or without HR”. He says he walked away from the incident after getting frustrated, angry and losing control.

 

Cushen’s version of events was that he was confronted by Ali, handed back the clipboard and told it was “your f**king job”. Cushen says the verbal abuse continued, and Ali said he would “shove [Cushen’s] head up [his] f**king ass”. Cushen replied “Are you threatening me” and Ali replied, “We’ll go out the front and I’ll punch your f**king head in”. Cushen says he then said, “How about we go the HR”. Ali continued to verbally abuse him and indicated that he didn’t “give a f**k” about HR or the job. He accused Cushen of not fulfilling his work duties. He says he was left shaken, bemused and anxious about his next workday.

 

The incident was witnessed by the leading hand, who stated that Ali said, “I’m your f**king boss you listen to me when I talk to you”. Cushen replied “What’s with the attitude?” and told Ali to “settle down”. Cushen spoke to the leading hand, saying “I don’t understand the attitude”.

 

According to the Leading Hand, Ali then “fired up” and aggressively said “You want a piece of me? Want to go outside?” Cushen said calmly to Ali “Let’s go to HR”. Ali responded, “I don’t give a fuck about HR or my job.” He then said “Come outside, I’ll show you who I am, I’ll sort you out” at least three times.

 

The Commissioner, on the other hand, observed that:

 

“Ali was a credible witness but was emotional at times and some of his denials or explanations about the incident of 17 January 2019 are difficult to reconcile with documents he prepared shortly thereafter. Cushen was a generally credible witness but in my observation his evidence was clouded by self-preservation. He had very specific recall of what Ali had said to him in the incident, but very little recall of his own part in that exchange. Louison [the leading hand] was a dispassionate witness whose evidence was largely consistent with his witness statement. However, his oral account of the incident varied slightly in content and sequence under cross examination and his evidence of Cushen’s demeanour during the exchange changed”.

 

Finding:

 

“It is clear from the exchange between Ali and Cushen that the altercation between them was wholly inappropriate in a workplace setting. In my view, it was triggered by Cushen’s aggressive rejection of Ali’s authority. As leading hand, Ali was required by Chobani to direct the work of other employees, including Cushen. His instruction to Cushen was both lawful and reasonable. Cushen had a duty to follow the instruction and his failure to do so was unacceptable.

 

“That is not to say that Cushen’s insubordination justified Ali’s response. Ali had reason to be upset with Cushen, but the appropriate course was to escalate the matter by reporting it to management, as Ali acknowledged in his response to the show cause letter”.

 

“Chobani relied on Ali’s purported breach of its “Values and Behaviours” as well as the ‘soft skills’ required of his classification under the Enterprise Agreement as additional reasons for dismissal. I am not satisfied on the evidence that Ali had ever seen Chobani’s “Values and Behaviours”. In those circumstances, no separate valid reason for dismissal for breach of policy existed. The evidence is inadequate in relation to whether there was a breach of the Enterprise Agreement and there is separately a question of inconsistent application of its terms by Chobani. The Enterprise Agreement empowers leading hands to give instructions to other workers, and it is clear that Ali was not supported to do so in relation to Cushen in connection with the events of 17 January 2019. I am not satisfied that either the alleged breaches of Chobani’s policies or its Enterprise Agreement are made out”. [My emphasis].

 

Whilst the Commissioner found that there was a “valid” reason for the dismissal, on balance it was unfair when taking into consideration other factors including Al’s personal circumstances:

 

“Ali is an Afghani refugee who arrived in Australia in 2000 and now has Stage 4 cancer. The medical evidence from his doctors and psychiatrist confirms that he suffers from post-traumatic stress disorder as a result of the experiences of his past. He is dealing with anxiety specifically related to the financial stress of losing his job, because of the effect it will have on his family both in Australia and overseas. His personal circumstances weigh in favour of a finding of unfair dismissal in this case”.

 

The Commissioner ordering compensation in the sum of $8,646.25 gross plus superannuation.

 

Commentary

 

Whilst the Commissioner in this matter was swayed by Ali’s personal grief, it is also important that the evidence relied upon to dismissed him (ie the policies) were not displayed or otherwise disseminated to employees.

 

Employers should have in place (as a bare minimum) a Code of Conduct with printed copies provided as part of the induction and also displayed on the Company’s intranet.

 

Also there was the matter of the company not supporting his role of leading hand, allowing other employees to ignore his instructions.

 

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

 

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.