Industrial Relations Commission of New South Wales CITATION: El-Fil v Elite Professionals Pty Limited [2005] NSWIRComm 1042 APPLICANT Mohammed El-Fil PARTIES: RESPONDENT Elite Professionals Pty Limited FILE NUMBER(S): 2227 of 2004 CORAM: Murphy C CATCHWORDS: Termination of employment - security officer - transferred to part-time site of unspecified hours - allegedly for poor performance and sleeping on job at client's request - credibility findings against respondent - applicant found to be dismissed unfairly by transfer and no follow up on clarification of hours - real reason - transfer for refusing to sign an AustralianWorkplace Agreement with draft terms less favourable than state award - applicant also found to have been victimised under S.210 (l) (e) of Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 08/30/2004; 12/06/2004; 02/11/2004 EXTEMPORE JUDGMENT DATE : 03/24/2005 APPLICANT Mohammed El-Fil appeared in person LEGAL REPRESENTATIVES: RESPONDENT Mr Baker appeared as agent DECISION: 25 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C Date of Issue: 24th March, 2005. Matter No IRC 2227of 2004 MOHAMMED EL-FIL AND ELITE PROFESSIONALS PTY LIMITED Application by Mohammed El-Fil re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION EXTEMPORE 1 Mr El-Fil was engaged as a security officer with the respondent company for some four months. His starting date was 24 November 2003 and he claimed in his application that he was dismissed on 26 March, 2004. One thing in agreement was that his last day of duty was 18 March 2004. 2 Mr El-Fil's matter was the subject of hearing over three days. The completion of evidence was 11 February. The matter began on 30 August, followed by 6 December. It was earlier the subject of conciliation on 25 May and 11 June. 3 The applicant gave evidence and did not call any other witnesses. The respondent relied upon the evidence of Mr Curnick, the operations manager, and the evidence of Mr Draper, who was a security guard on duty at the respondent's client's MCI site at Glebe on 18 March, which was the applicant's last day of duty. 4 The Commission was provided with some 11 exhibits during these proceedings, and I should quickly outline those. The applicant's initial submissions to the Commission were marked as exh 1, which comprised some five pages of narrative as to how his dismissal allegedly occurred and why it was unfair. 5 In exh 2, the applicant provided what has been described here as his primary statement of evidence and that contains several attachments which are of some importance. I should quickly mention those. There were some calculations as to what he believed he should have been paid under the Security Industry State Award, although very little was said in evidence about that issue, part of the problem being that the matter could not be brought under s 380 as a matter of breach of any award provisions and for compensation as such. Importantly, perhaps the first page after that comes the significant letter from a Mr Les Ryan, who was the client at the Fujitsu site of the respondent's operations at Rydalmere. 6 That letter was provided to the respondent on 22 April 2004, which it is appropriate to note, was several weeks after the alleged dismissal of the applicant on 26 March. It was sent to the respondent in response to an email from Mr Curnick, the operations manager in preparation for these proceedings. His email was dated the same date and I take time now to quickly read that email from Mr Curnick: "As discussed earlier today, could you please confirm in writing your request on Friday, 12 March by telephone conversation with myself to have Mohammed El-Fil removed from the Fujitsu site due to his abilities to perform his duties to the required standard. If you wish, it will also include the incident on 18 January when he was found asleep with the telephone off the hook. It would be very much appreciated, yours, regards." 7 The reply received from Mr Ryan was significant in that it restricted its comments to the issue of the applicant's allegedly being asleep on 18 January, at the Fujitsu site but did not address the issue of his performance, that is, "his abilities to perform his duties" as termed by Mr Curnick. 8 Mr Ryan's reply read as follows: "Andy, please accept this email as official confirmation of a security breach by one of your guards. On Sunday, 18 January at approximately 6am, a member of staff who had been working all night on the site, tried to notify your guard, Mohammed El-Fil, that he was ready to leave the premises, to arm the security alarm for the area, but was unable to contact him by phone for over 10 minutes because the phone was constantly engaged. When the staff member then went to the guard's room, he found that the guard was asleep with the telephone off the hook. As you are aware, this is a serious breach of our security policy and as such we request that you take appropriate action in respect of this guard and ensure that this does not occur again." 9 So there was no other details about the alleged inability of the applicant to perform his duties and separate acknowledgement was given by Mr Curnick that there was no complaints about the applicant's performance and I will deal with the contradiction to that evidence later on. 10 According to Mr Curnick, the applicant was sent a third and final warning as a result of the alleged sleeping on the job. I should observe at this stage that the applicant complained in cross-examination as to why such a warning should be couched in terms of "Third and Final" when it was acknowledge by Mr Curnick that there was no first and second warning. The reply to that question from Mr Curnick was along the lines that the matter was serious enough to merit being designated Third and Final; yet not serious enough, according to the point sought to be made by Mr El-Fil to merit his dismissal for this serious breach for falling asleep. 11 The Commission was provided with the ostensible misconduct warning which read as follows: " Misconduct, 18 January, warning conducted, third, final written. The nature of the warning as discussed in our telephone conversation of Monday, 19 May between the persons listed below, this warning has been issued in relation to your conduct while covering the Fujitsu site on the abovementioned date". "Failure to abide by the rules and regulations as set out in the Security Act, as set out in the ESP Standard Operating Procedures", et cetera, "rules of conduct, act of misconduct". " Security Industry State Award , cl 7(2.1), an employee may be summarily dismissed for serious misconduct, being conduct by an employee of such a nature as would constitute a repudiation by the employee of his or her contract, including but not limited to sleeping on duty." 12 I should observe that that clause of the award goes on to list a series of other offences. 13 It also goes on to say that in such cases, the employer would be liable to payment up to the time of dismissal only, so in other words, deserving of summary dismissal. 14 Throughout the cross-examination of Mr Curnick, in the early stages at least, and in his own statement which was exhibit 5 in these proceedings, there was some emphasis upon this incident. He gave details of the particular officer of the client, that is, Mr Phillip Code, who was said to have complained about the applicant's alleged conduct of having feet on the desk, being asleep and phone off the hook. Mr Curnick gave evidence of contacting the applicant again, as I have already mentioned. Importantly, he gave evidence that in that conversation Mr El-Fil admitted that he was sleeping and apologised for doing so, stating, that it would not happen again. Having explained to Mr El-Fil the serious nature of this misconduct, Mr Curnick claimed to have issued the third written warning and asked him to attend the office to sign the document. It is common ground that there was no such document signed. The big difference between the parties, however, is that the applicant's evidence was that he was never given such a warning. The applicant also denied firstly the conduct alleged on 18 January, and further denied every being approached by Mr Curnick in respect of it, and naturally denied, of course it follows, making any admissions. 15 Mr Curnick alleged that the applicant did not come to the office to receive the alleged warning letter, citing study commitments at the time. Mr Curnick's testimony was that he gave it to Mr George Karydis, the night manager at the Fujitsu site, for Mr El-Fil to sign. He further testified that Mr Karydis attended the site, but left the warning in the security office for the site supervisor, Raj Etherage, to obtain the signature of the applicant. According to Mr Curnick, when he asked Raj about the signing, he reported that Mr El-Fil had said, "I am not going to sign the warning. If Les is not happy with me, I will move somewhere else or I will leave the company". 16 On 12 March, Mr Curnick claimed that he received another phone call from Mr Les Ryan, who went by the title of building services manager at the site, and who allegedly said, "I am not confident, not real confident having Mohammed on site. He was found asleep once and I just do not feel comfortable with his performance". Mr Curnick claimed to have said, "Would you like me to remove him from the site?", to which Mr Ryan was supposed to have responded, "I would appreciate if he was not at Fujitsu". 17 The evidence of Mr Curnick goes on to say that he contacted Mr El-Fil on 15 March informing him of the client's request, and he gave important evidence that the applicant allegedly agreed in this conversation that his behaviour was less than acceptable and said, "Fujitsu is a boring site, where will you be moving me to?" Mr Curnick replied by saying, "We have shifts available at MCI at Pyrmont or at McDonald's in Liverpool. I told Mr El-Fil I will have to look at what shifts are available at these sites and will contact you shortly". He claims to have contacted the applicant the next day, 16 March, to instruct him to attend a four hour induction/training session at 55 Pyrmont Bridge Road, Pyrmont, between 8pm and 12am and to report to Mr Michael Draper, who gave evidence in these proceedings. 18 He contacted Mr Draper on the 18th and was informed by Mr Draper that Mr El-Fil was late, and not competent enough to work at the MCI site and has said, "Mohammed left the site at 10pm when I left and did not stop asking me questions about the company and about what I thought of you and Scott. I do not think he is suitable here. He showed no interest in learning the database and was not concentrating on what I was explaining to him." The respondent claims to have contacted the applicant on the 18th, who according to the respondent, replied, "I do not like the staff at the site and it is too hard to understand the computer system". 19 Mr Curnick replied, "Well, the only other site I have hours available for is McDonald's Lansvale and Villawood". Mr El-Fil said, "I do not want to work at Macca's". He was told there were no other sites with vacancies at the moment, so you need to let me know what you want to do. Mr El-Fil said, "I will think about it". 20 Mr Curnick claims that on 22 March, he had not heard from the applicant, his mobile remaining unanswered. He claims to have contacted the home number, spoken to an older woman, who advised him Mr El-Fil was not at home. He asked the woman to have Mr El-Fil ring him. The lady allegedly replied, "Okay, I will tell him". He claims to have left a further message for Mr El-Fil which was not returned either. On two other occasions, according to Mr Curnick, he tried to contact the applicant. 21 On 26 March he received a call from Mr El-Fil and he advised Mr El-Fil: "I only have shifts at McDonald's, do you want to work there or not?" Mr El-Fil replied, "No, I do not want to work there". "I told Mr El-Fil, 'You need to decide what you are going to do, are you going to accept the position?' Mr El-Fil said, 'I will think about it'. 'You have got until Monday, 29 March to decide what you are going to do. I have no other sites with shifts available'. Mr El-Fil said, 'Okay, I will call you on Monday'". On 8 April, having not heard from the applicant, the respondent assumed that the applicant had abandoned his employment as contemplated under Clause 7.2.2 of the New South Wales Security Industry State Award. Accordingly, a termination letter and a certificate of service was sent by registered post to the residential address provided by the applicant. It received a "not known at this address" sticker, with the return of that envelope. 22 On 22 April, the respondent claims to have received the applicant's application to this Commission, which the record shows was actually filed on 13 April. The respondent goes on to talk about the alleged failure of the applicant to renew his licence. Some considerable emphasis was placed upon this by Mr Baker in his final submissions to this Commission. 23 The applicant in his statement provided some rosters at the Fujitsu site which showed the hours worked by the staff around the time of his dismissal. Mr El-Fil relied upon those to show that when he worked at the site prior to his transfer to the MCI Glebe location, there were only two officers working at the Fujitsu site and the rosters after his "dismissal" show they were forced to work up to 66 hours a week and in some cases 52 hours, and these were under the Australian Workplace Agreement arrangements. 24 Attached also to the applicant's witness statement is a warning letter dated 3 December, 2003, but was significantly addressed to all three guards who worked at the site, i.e. "Raj (already mentioned), Khalique and Mohammed". It goes on talk about the need for proper wearing of uniform, punctuality, the need to take details of Raj's mobile telephone and again finishing up on the note of the alleged lateness, which presumably all three might have been indulging in at the time, given that the warning was addressed to all three at the site. 25 On 20 January, 2004, came another warning to all Fujitsu/ESP staff, saying amongst other things. "You cannot, will not work 14 hour shifts without authorisation, in an emergency I need to know who is located at every site." It also talks about the proper use of the site mobile, and goes on talk about the proper procedures to canvas any questions in relation to the award or any concerns they may have had in respect of pay. 26 On 29 September, 2003, there was also a memo sent to all staff, but less important, I suppose, because of its date, but it also talked about the 14 hour shifts in much the same way - threatening discipline for those who do not observe the rules. 27 I now turn to the most important issue raised by the applicant in his evidence before the Commission. 28 His evidence was that the reason for his removal from the Fujitsu site had nothing to do with the sleeping incident, nothing to do with the alleged complaint from the client Les Ryan about not being efficient, not performing, his ability as a security guard at the site, and, (related to that), nothing to do with Mr Les Ryan being uncomfortable with him being at the site, but everything to do with the fact that he had been approached, along with other guards at the site, to sign an AWA, that is, an Australian Workplace Agreement. The workplace agreement which Mr Draper identified as being similar to one he signed, although having a different rate of pay than others apparently was marked in these proceedings as exh 10. The state award, by comparison, was marked exh 9. 29 It is the applicant's case that he was threatened that if he refused to sign the AWA, that he would be moved to another site. The applicant gave evidence of giving the message back to Mr Curnick that he preferred to enjoy his penalty rates and could not afford to move to the flat $17 a week offered to him in respect of the AWA. It was not contested that that flat rate of $17 an hour took into account, inter alia, all penalty rates, including public holidays and weekends. 30 It was the applicant's evidence then, that when told to report to the MCI site, shortly after refusing to sign the AWA, that is on 18 March, he was given a wrong address with a nearby street by a similar name, but not the same. This was the reason, the applicant says, and the only reason, why he was considerably late arriving at the site. The applicant stoutly resisted any suggestion that he was disgruntled with the new site, and other issues raised by Mr Curnick such as that he was allocated a four hour training session, but only stayed until Mr Draper left the site; that he was dissatisfied with the parking arrangements, that he could not understand the controls - that he was dissatisfied and puzzled by the computer system; and that he generally showed no interest in the site. All such issues were refuted by him. 31 The evidence of Mr Draper dealt with later in regard to these matters, was fairly important, especially where it proved to contradict Mr Curnick. 32 It was the applicant's key evidence in respect of the MCI site that he was surprised to learn from Mr Draper that the site only attracted some 20-odd hours compared to the Fujitsu site of 38 hours full-time position. Mr Draper's own evidence was that the applicant would have worked 20 to 25 hours, so there was very little disagreement about that. Mr Draper's evidence was also that he told the applicant that he would have to speak to the operations manager in respect of how many hours he may be able to attract at the site. The respondent's evidence on that score was along the lines that it would be necessary for Mr Curnick to "re-jig" the rosters to give some guarantee of full-time work. 33 Accordingly I was satisfied that the evidence established that at the point where the applicant reported to the MCI site, there was some real and understandable concern from the applicant - that he was being offered a part-time position with no guarantee of anything else, having been transferred from the Fujitsu site full-time position. That much is effectively uncontested. 34 The respondent's evidence, I repeat, was that it was only a temporary arrangement until some reorganisation of rosters could take place. On top of that contention, the respondent's evidence was that the applicant expressed disinterest in the Glebe MCI site, and for the reasons already elucidated in Mr Drapers ostensible report, the applicant was unsuitable to the site in any event. 35 The applicant's evidence is contrary to the details supplied by Mr Curnick, along the lines that he was led on "a wild goose chase" when attempting to get some certainly in his position at Glebe and allowed to wilt on the vine so to speak. 36 On that allegation of the applicant, I should say at this stage that the Commission is conscious that the dismissal of employees has long been held - and I refer to the important case of Smith v Director General of Education, by the Full Bench of this Commission, that the concept of a sending away was sufficient to attract a finding of dismissal. So the expressions, "you are dismissed", "sacked", or any other words in the vernacular that might usually accompany a person's termination from their workplace, need not necessarily be used. In this case, then the applicant relied upon the fact that he was allowed to "wilt on the vine", so to speak, and because no proper follow up was made by Mr Curnick, contrary to what Mr Curnick says. Mr El-Fil denied that messages were left at his home and made several other observations refuting the specifics provided by Mr Curnick as to whether or not he made attempts to contact him. So the applicant's rebuttal of most of that was contained in a statement provided by him in exh 3. He claimed in para 13 for example, that he was "being set up", so to speak, for termination by the fact that there were only 20 hours available for the particular site he had been sent to. 37 In respect to the reliability and independence of Mr Draper's evidence, he gave evidence that Mr Draper had said to him around that time on the 18th, "Once Scotty opened the company and got his contract, I was his best mate, so I got the job here, man. Me and him still go to the pub for a few drinks". It was not denied by Mr Draper that he had a friendship with Mr Baker, but resiled from any outright acknowledgment of having any close friendship with Mr Baker, stating that he was his boss. 38 The applicant denied that on 18th March, 2004, at the MCI site that he had stated to Mr Draper that the computer system was too hard to understand. The computer system, he said, was very close in relation to the one at the Fujitsu site and claimed that he would hardly have survived at Fujitsu if he could not operate the same system there. 39 The applicant also gave evidence that if there was any problems with his performance generally at Fujitsu, as later alleged in the cross-examination of Mr Curnick - it should have been addressed during his period of probation. 40 So the applicant contacted Mr Curnick, he says, on 18 March. "The reason I contacted him is because I was concerned there was no full time job available, given what Michael Draper had told me", which was, "There is only 20 hours at this site, not 38. You must be working as a casual". He claimed also that he was never given the opportunity of working at McDonald's. The first time that he had heard of the offer of McDonald's was when he appeared at the first conciliation conference in this Commission. The applicant, in contradiction to Mr Curnick's contention of leaving messages at the home of Mr El-Fil with an older woman after 18th March, was that the only female living at his residence was his mother, who does not speak English. 41 In respect to another matter raised by the respondent, the applicant testified that during March 2004, he became conscious that his licence had expired. To his astonishment, he was disappointed that his employer, Mr Curnick, who is the national operations manager responsible for the employment and subsequent management of the employees, did not send him a single letter to inform him that the licence was about to expire. "Nor was I sent a letter stating that my licence has expired. I called Mr Curnick the next day and told him my licence had expired". He was told by Mr Curnick, "You are one of our good workers, keep working until you get your new licence, just give me a photocopy when you get it." "He also stated that he was short of staff and will not be able to hire anyone else to replace me while I apply for my new licence. I had to contact the security industry asking them what procedure do I have to take in updating my licence. I was told I need references." The reference provided by Mr Curnick, dated 4 March, was attached to the applicant's statement. He claims not to have known that it was illegal for him to follow the instructions of Mr Curnick to keep working until the licence was replaced. 42 He complained about what he described as the stealing of his hard earned remuneration from the respondent in his final pay. In addition to the $613 net that he should have received - $99 was said to be withheld for the non return of shirts. He says it was not disclosed to him that he needed to return both ESP Security shirts and offered to return those at the next hearing of the Commission. FINAL SUBMISSIONS: 43 Mr El-Fil commenced his submissions by saying that the fact that he has finally found a job does not obviate the harm done to him by Mr Curnick and the evidence that he has brought before these proceedings. He also claimed that he only achieved a new position in the industry once he ceased disclosing that the respondent was his previous employer. As to the complaints against him, he referred to the fact that there was some inconsistency in what Mr Curnick put before the Commission, first claiming that there was no complaints from Raj, his immediate supervisor, and that it was "all positive", there were no complaints from any other employees towards the applicant. Later, Mr Curnick contradicted that when he claimed that there were a couple of complaints. Given that it was a one man site, the applicant found it rather ironic that he would get complaints from others in any event. 44 He next dealt with the study leave, but I am unable to unravel Mr El-Fil's claim which alludes to some alleged inconsistency claimed by the respondent from knowledge obtained in the conciliation conferences. There was no real proof that the respondent concocted that aspect. The applicant claimed from the bar table though, that he was indeed not studying at all. This went to the issue of why the applicant had not turned up to receive his third and final warning alluded to earlier, but I can do no more than say at this point that no conclusion on that point by the Commission is possible from the evidence. 45 Mr El-Fil then dealt with the alleged delivery of the warning letter to him where Mr Curnick had changed his claim that George had been given the earlier mentioned warning letter to give to Raj - first claiming that it was supposed to be given to the applicant himself, but resiling from that to say that it was given by George to Raj, as he was on duty. There were other inconsistencies relating to that issue. 46 He next referred to the important fact that he was allowed to continue working long after the alleged sleeping incident on 18 January. There was some apparent inconsistency as to whether or not George had been told the contents of the letter and whether Raj knew the contents of the letter. Mr El-Fil claimed that Mr Curnick had first claimed that he did not tell other staff as to the letter's context, yet later in the transcript, at p 67, said Ray knew exactly, and later admitted that George and Raj both knew, p 50. He drew attention to the fact that Raj had actually supposedly written a statement about him sleeping, which again is in some conflict with Raj not being told what was in the sealed envelope, in Mr Curnick's evidence. Later Mr Curnick acknowledged in the same page of evidence at p 50 of 6 December, that there was no such statement from Raj. 47 There was further representation from Mr El-Fil about the timing of matters, which I do not necessarily accept from Mr El-Fil, and I will not bother to reiterate those. He again drew attention to supposed inconsistencies in Mr Curnick's evidence, with what he told the Commission in conciliation. However, the Commission does not rely upon those. I should add that my concern for quoting from conciliation is that persons are not under oath during that conciliation phase and whilst, if a witness is taken to transcript of those proceedings and asked why they have made some inconsistency, it might be relevant, no such exercise was adopted here. Mr El-Fil presumably did not have available at the time the transcript to show the witness. 48 He next dealt with the alleged underpayments upon his termination. 49 Mr El-Fil maintained some inconsistency again where Mr Curnick, at p 116, 117, first claimed he had no control over the alleged underpayments, but later said that the administrative officer takes his instructions in respect of certain matters. 50 He complained that both Mr Draper and Mr Adam Hartley were supposed to have reported about his alleged performance at the MCI Glebe site on 18th March, and rightly pointed out that it turned out Mr Curnick had to back down to acknowledge that Mr Hartley was not there that evening. It was another point of credibility of Mr Curnick and again regarding the MCI site. He attempted to establish that there was some inconsistency in the evidence given by Mr Curnick in respect of how long it took to fill the job, stating that Mr Draper, working on the site, had said it was two weeks, whereas Mr Curnick had insisted it was three months before he filled the position. 51 The final submissions of Mr Baker for the respondent came next: 52 Mr Baker submitted firstly in rather general terms, that the applicant's application for this Commission was completely outrageous, that it is full of falsehoods, that in fact he had chosen not to take responsibility for the job that he had, particularly at the end, he dodged the responsibilities in failing to reply to Mr Curnick's overtures as to what might be established by way of alternative employment or alternative sites, that is, after 18 March removal from the Fujitsu site. 53 He referred to the return to sender envelope which is attached to the applicant's application as an indication of the effort to contact Mr El-Fil. 54 As with Mr El-Fil's urgings to the contrary, the Commission is not able to make any concluded judgment about that issue. 55 Mr Baker returned to the theme of the 19 March offer of hours at McDonald's; on 26 March further discussion about matters; also claiming that the applicant was given until 29 March and failed to contact. He alluded to the alleged contact by Mr Curnick to the applicant, leaving messages, et cetera. He then alluded to what he described as a breach of the award and the security industry regulations in as much as the applicant had failed to renew his licence and spent some considerable time taking the Commission to the issues involved. I note at this stage of course, that the provision in Clause 7.3.7 of the Award has the words "requested to renew licence", and I notice the Act has an obligation on the respondent to ensure the proper holding of current licences. So I am not too sure I have the same emphasis of responsibility or the level of importance to that issue as Mr Baker did. It might have been reasonably important in the broader scheme of things, but in this case it was hardly relevant to the alleged reasons for the applicant's ceasing of his employment. Moreover, the applicant's evidence of not knowing it had expired and when he wrote to Mr Curnick, according to his evidence, he was invited by Mr Curnick, in fact it might be said he was under some pressure to continue to operate without a licence. So the applicant's evidence on that score was very much contradictory to the emphasis placed by Mr Baker, in any event. 56 The applicant then replied to final submissions and took the Commission again his challenge in respect of the return to sender letter. He went on to answer the licensing issue. I will leave those final submissions. CREDIT OF WITNESSES: 57 I now turn to the important issue of credit, because as I have already alluded to, much of my decision in this case revolves around whether the evidence of Mr El-Fil or Mr Curnick was to be preferred. Mr Draper was less crucial, except when Mr El-Fil pointed out where Mr Draper effectively contradicted Mr Curnick largely when he failed to back up the alleged reporting to Mr Curnick as to what was said by Mr Draper by the applicant on the evening of 18th March, 2004 at the MCI site. 58 Can I firstly make this general observation; that the applicant, Mr El-Fil, provided a very plausible and consistent approach in his evidence. He appeared to be earnest and truthful in the witness stand, especially under pressure. Mr Curnick, by contrast, was shown to be an unreliable witness. The indications of this are outlined shortly. 59 His evidence was shown to be replete with inconsistencies. The Commission has had the opportunity prior to today's final submissions and evidence of today to go over the transcript of previous testimony and many of the indications of the lack of reliability of Mr Curnick's testimony which were identified in final submissions by Mr El-Fil, were indeed already recognised by the Commission itself from the transcript. 60 Naturally, some of those issues of Mr Curnick's credit were more important than others. The sheer number, apart from the importance of some of them, led the Commission to arrive at the position where it was impossible to believe Mr Curnick over Mr El-Fil. 61 Mr Curnick's evidence in the end appeared self-serving and shifting to the situation presented, particularly in cross-examination. He was found formally to be too ready to mislead the Commission on matters to bolster his case, and accordingly where his evidence conflicted with that of Mr El-Fil, I have had to prefer the evidence of Mr El-Fil. I will give some examples then of the inconsistencies in Mr Curnick's statement, and also evidence of where he put forward matters that were simply inconceivable and beyond belief. 62 Several issues arise from the curious fact that the applicant was allowed to continue for two months after the alleged sleeping incident on 28 January, 2004, behaviour which should almost always be a dismissible offence, if proven to the proper standard required. 63 Mr Curnick in his evidence attempted to deal with the question from the applicant as to how Mr Phil Code, the relevant officer of the client at the Fujitsu site, could have seen him asleep, given that the blinds were drawn on the security room - apparently because of the fact that the gentlemen's toilets were immediately outside that window. On being cross-examined on the issue, Mr Curnick, whilst not challenging that the blinds were drawn, reverted to saying there was a gap between the blinds. However, there was a suspicious lack of details given by Mr Curnick, believable detail that is, as to where the gap was supposed to be, or such as to whether Mr Code had actually looked at both ends of the blinds. If he did not look between the alleged gap at both ends, one wonders why he would be able to see firstly the applicant was snoring, and that his feet were up on the table in the other, and also observe that the phone was off the hook. But it is curious that some reference was not made by Mr Code of how he viewed the applicant in that position or as to why he did not attempt to awaken the applicant or even speak to him. This was therefore most unlikely to have been the case as claimed by the respondent or in the terms finally procured from Mr Ryan mentioned earlier.. 64 More unlikely, of course, was that the applicant was allowed to get away with the third and final warning and refusing to sign it, with the alleged off-handed comments that he allegedly had made of study commitments. Other evidence in this Commission leads me to believe that the respondent would not have tolerated such behaviour. Logic would dictate that upon learning about this, Mr Curnick should have brought the applicant in on another time when he was not allegedly busy with study commitments as claimed by Mr Curnick. Accordingly, that is another aspect which appears even more beyond belief. 65 More unbelievable still was the key factor relied upon by the respondent, that the client of the respondent, Mr Les Ryan, was uncomfortable with Mr El-Fil. No details were provided, although later in the cross-examination, Mr Curnick appeared to invent several issues which were meant to bolster the case against the applicant's general performance at the site, and the shifting nature of that evidence moved from log books, which he had to acknowledge in cross-examination were useless as proof of anyone's performance. Time keeping was mentioned, but again there was no specifics provided. The failure to provide the alleged statement by Raj as to the applicant's handling of the alleged third and final warning was suspicious, to say the least. And the response to this deficiency by Mr Curnick, that he did not see it relevant to call Mr Raj was not just inadequate, but unbelievable when such testimony would have been crucial to the respondent's case as to the alleged reasons for his transfer from the Fujitsu site. 66 There was therefore much about the evidence and the reliance by Mr Curnick on certain issues which were simply inconceivable. Another of those issues was that the applicant was supposed to have said that he was happy with the move from Fujitsu. Apart from the absolute denial in applicant's evidence, the idea of the applicant allegedly expressing the view that he was happy to be transferred because he was bored with the site, was inexplicable. The security industry is notorious for long periods of lonely vigilance and without the knowledge of where he was going, it was highly unlikely that he would have said that. This is especially so, given the fact that the MCI site to which he was moved to was only 20 hours per week and that it was so unlikely that he would not have questioned the status of the job before he went. The only comment Mr Curnick volunteered as supposedly falling from the applicant, (apart from being bored and he was happy with the move), was that he accepted that in the circumstances the client had said he was disappointed and that the client did not have faith in him. It is unbelievable that there would not have been more strenuous opposition from the applicant who showed himself in these proceedings as being capable of dealing in some detail and some precision with the arguments of the respondent and according to Mr Curnick's evidence, and had earlier refused to sign a warning letter in respect of the alleged complaint by that client. 67 There are other examples which I will not take time to go through, which although indicating some inconsistencies in Mr Curnick's evidence, were less important identified by both Mr El-Fil and the Commission itself in examination of the transcript. I should however, refer to the fact that Les Ryan the so-called dissatisfied client, made no reference in his reply to why he was "uncomfortable" with Mr El-Fil, despite the invitation to do so in Mr Curnick's memo at page 2/3 of this decision. Again, in an attempt to establish some evidence of Mr Ryan's dissatisfaction, Mr Curnick appeared to revert to imprecision and exaggeration, referring at one point to the valuable equipment on site. At another stage he suggested that the applicant's performance on site had been monitored, and as I have already referred to, the contention of the use of log books was convincingly refuted. I add to that that he also set out to suggest that swipe cards were a test of monitoring the applicant. There was some inconsistency, as I have already mentioned, about whether or not the other guards had complained. When tested on it in cross-examination, Mr Curnick appeared to revert to say that there was no formal complaints against him, but all the other staff had made verbal complaints. No particulars were provided for that aspect and in view of the suspicious absence of those particulars, I do not accept the evidence of Mr Curnick either that other staff complained or that the respondent's client was "uncomfortable" with the applicant. 68 In Mr Draper's case, much of what he put against the applicant had to be considered in the light of his lack of true independence as a witness. I should clarify that Mr Draper was not found by me to have necessarily set out to deliberately mislead the Commission, but I think there was an element in his statement of doing the bidding, at least of the respondent in at least the style of his testimony. But the salient feature of Mr Draper's evidence was that it was often inconsistent with what Mr Curnick alleged that Mr Draper had on some instances actually said, and I have alluded to that earlier. In short, there was nothing in Mr Draper's statement, except for the relatively minor fact that the applicant gave no excuse for being late that evening, that should be of concern to the applicant at the end of his cross-examination. However, he may have been angry with the fact that he had been, in his words, given the wrong address of Glebe Point Road and Glebe Bridge Road, I think it was, which led him on a merry chase. 69 The applicant's alleged inordinate interest in the equipment was dealt with in a derogatory fashion by Mr Draper, but I must say that given that the patrol only took him 10 to 15 minutes, it was natural enough for him to show some interest in the sophisticated equipment on hand there. It was not established through Mr Draper that he had any difficulty with the computers as alleged by Mr Curnick. It was shown by the evidence of Mr Draper that there was some considerable training necessary for the applicant to have been properly trained and subsumed within the MCI site, (noting that Mr Curnick's evidence was the applicant said he did not want to be there). I have not accepted Mr Curnick's evidence that the applicant had expressed a dislike for his new assignment, apart from it being a 20 hour per week assignment in place of his full-time position. 70 Therefore the failure to offer Mr El-Fil some further training in respect of the site, if there was any concerns about his performance, was something which went against the respondent in an overall fashion as to their treatment of the applicant. 71 Also affecting Mr Curnick's evidence was his all too convenient and unbelievable shift away from the emphasis upon the evening of 18 January where the applicant was supposed to have been found asleep with the phone off the hook and feet up on the desk, to the reliance upon some alleged discomfort by Mr Ryan with having him at the Fujitsu site. The fact is, I am satisfied that that emphasis was a tactic by Mr Curnick when pressed in relation to the strange delay in reacting to the supposed sleeping incident nearly three months earlier. Unfortunately for him, I just found it totally unbelievable that the applicant was actually monitored and that there were actually some complaints. Certainly he received no warnings. In relation to that, Mr Curnick relied upon the provision of the award, he said, that he is required by clause 18.3 to remove someone from site upon the client expressing dissatisfaction, stressing that there was some automaticity to that requirement. In fact, when one looks at that provision of the award, which is cl 18.3, it says: "The transfer of an employee in response to a client demand, where the employer transfers an employee in response to the client's demand and that transfer results in loss of income for the employee, the employee shall have their income at the site from which the employee was transferred, maintained for the period remaining in the roster cycle". 72 Now, I had had to consider on this point the evidence of Mr Curnick that the applicant expressed dislike of the MCI site and according to him effectively abandoned his employment. I have not accepted that evidence from Mr Curnick and in effect the employer was in breach of that clause of the award, as it did not require the automatic expulsion from a client's site and therefore natural justice would have required that all matters relied upon to be put to the employee prior to such a transfer. 73 I find it significant that even on the basis of the respondent's evidence, very little effort was made to keep the applicant on hold, so to speak, by some greater reassurance in respect to supplementing the 20 hours offered at MCI. The failure to tell him before he went there that this was a temporary arrangement was also in breach of the spirit, if not the wording of cl 18.3.1. He should have been more specific as to what was involved. 74 A further conclusion is that, having regard to my finding on credit, I do not believe that the employee of the client at Fujitsu would have seen what he claimed to have seen. But importantly, I find that in any event this alleged incident to whatever extent it may or may not have occurred, was certainly not investigated properly at the time, and that the applicant did not make the admission at the time attributed to him by the respondent. I do not accept that the incident occurred in the way claimed by the company and might even have involved someone other than the applicant, although it is unnecessary for me to determine that possibility. 75 Accordingly, I also find that the email from Les Ryan, which ironically did not speak about the major reason for his move, as later emphasised by Mr Curnick, that is that he (Mr Ryan) was uncomfortable with the applicant, but really only dealt with the 18 January sleeping issue, was likely to be a convenient concoction. 76 My major finding is that the applicant was effectively dismissed when moved to the MCI site by being effectively demoted to a part-time position on a roster of 20 hours per week. I find the applicant's account to be accepted that he did not refuse the duties at the Glebe site at the time, but sought to have it clarified as to when he would be given full-time duties at the site, having been surprised to only learn about the part-time nature of the position from Mr Draper on site. I find that the applicant's period at home was characterised by a lack of due commitment by Mr Curnick, which he was never given. I do not accept Mr Curnick's version of being in contact with the applicant or the applicant's mother. 77 I find that the evidence of Mr Draper was firstly, as I have already observed, less than independent and whilst his evidence was not to be entirely disregarded by any means, the main finding in respect of his evidence is that it was trivial, overrated by Mr Curnick, and worse still, misquoted by Mr Curnick. And that became clear from the cross-examination of Mr Draper himself, when he either failed to confirm matters attributed to him by Mr Curnick or gave some outright contradictions. 78 The applicant was dismissed by being transferred to a part-time position away from the Fujitsu site where he wished to continue working. I find that the dismissal was in retribution for his refusal to sign the AWA when approached by Mr Curnick and made it clear to Mr Curnick that he preferred to keep his penalty rates rather than to receive the flat $17 per hour AWA rate and other lessening of conditions. Evidence was established through an examination and comparison with the AWA with the award provision, that matters such as penalty rates, sick leave was significantly less, although I don't rely upon those except to suggest that his refusal to sign was understandable. 79 The applicant's dismissal therefore occurred for one of the very worst of reasons. I find that reason very concerning, and most certainly harsh, unjust and unreasonable. REMEDY 80 The applicant gave evidence of being unemployed for six to seven months and during that period, having recovered from the stress of what had happened to him, sought employment within the security industry in which he was qualified. The applicant gave evidence that one of the reasons for his failure to achieve a job was the apparent lack of assistance by being dismissed from the respondent in these matters, giving evidence that when he ceased to put the respondent down as a referee, he finally scored a job. He gave details of his earnings and noting that the last week was not paid to him, (a figure of around $600), and having regard to the details provided under oath by the applicant, I make the following order: POSTSCRIPT TO DECISION CONCLUSION AND ORDERS 81 Whilst not relied upon by me or canvassed in my decision given extempore, the reason for the applicant's dismissal on 18th March, 2004 appears to have also offended the Victimisation provisions of Section 210(1) of the Industrial Relations Act 1996, where at subclause (e) the section provides as follows: 210(1) [Reasons for victimisation] An employer or industrial organisation must not victimise an employee or prospective employee because the person: (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument. 82 My concern to note that aspect arises from my finding that the applicant, after expressing a desire to retain his penalty rates under the award, and not sign the AWA for a $17 flat rate, was dismissed by transfer to another site in a part-time position, which led him to seek clarification of his position which was never forthcoming. 83 Mr El-Fil's dismissal, which effectively took place on the last day of his employment on 18th March, 2004, was harsh, unjust and unreasonable, and he should attract the maximum amount of compensation available to him under section 189(5). 84 In so deciding, I have taken into account the efforts made by Mr El-Fil to find employment as well as his earnings once employed under Section 89(6). 85 The applicant is to be paid an amount equivalent to his earnings of $792 per week in the four months of his employment, which I estimate to be $12,000. That payment is to be made within 21 days of the date of the release of this decision. J P MURPHY Commissioner oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.