Raul Samar and Reliance Security Group Pty Ltd [2001] NSWIRComm 113

Industrial Relations Commission of New South Wales

CITATION : Raul Samar and Reliance Security Group Pty Ltd [2001] NSWIRComm 113 APPLICANT: Mr.R .Samar

PARTIES : RESPONDENT: Mr.G.Butterfield Solicitor Marsden Solicitors FILE NUMBER: of 2001 CORAM: Grayson DP Unfair dismissal - redundancy - offer of alternative employment - procedural and substantive fairness - signed agreement entitling employer to alter roster consistently with operational requirements of business CATCHWORDS : Held, No unfair dismissal - application dismissed LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 05/21/2001 EXTEMPORE JUDGMENT DATE : 05/21/2001

APPLICANT: Mr.R .Samar

LEGAL REPRESENTATIVES: RESPONDENT Mr.G.Butterfield Solicitor Marsden Solicitors

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: GRAYSON DP

MONDAY 21 MAY 2001 Matter No. 2564 of 2000

RAUL SAMAR AND RELIANCE SECURITY GROUP PTY LIMITED

Application by Raul Samar re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996. _____________________________________________________________________________

EXTEMPORE DECISION

1 HIS HONOUR: The applicant, Mr Raul Samar, was employed as a security officer with Reliance Security Group Pty Limited (the respondent) between 1 September 1998 and 29 May 2000. His claim for relief from alleged unfair dismissal was the subject of attempted conciliation on a number of occasions, in the course of which the applicant, on one of those occasions, raised an allegation of underpayment of redundancy pay and on another of those occasions raised a separate allegation of underpayment of wages generally throughout the period of his employment. 2 Neither of these subsequent allegations was of sufficient particularity to permit useful discussion, notwithstanding the Commission's attempts to impress upon the applicant the desirability of doing so in the interests of affording the respondent an opportunity for investigation and informed response such as might avoid costly and time-consuming litigation in another place. 3 These peripheral issues, if I could call them that, nonetheless contributed to the somewhat more protracted course of this matter than would otherwise have been the case and, it may be inferred, were raised by the applicant in an attempt to bolster his position as and when certain prima facie deficiencies in his unfair dismissal claim emerged in the course of conciliation. 4 The applicant, it would seem, is no stranger to these forensic difficulties, his earlier claim for unfair dismissal against the respondent having been summarily concluded by Commissioner Elder on 10 December 1999 (IRC Number 4519 of 1999) on the basis that no dismissal had occurred. In fact, the applicant was then, and remained until 29 May 2000, in the continuing employ of the respondent, albeit in circumstances which had changed and, it will be seen, were to change again according to the dictates of the respondent's business requirements. 5 Following the initial change to his duties in or about August 1999, which was said by the respondent, and not disputed by the applicant, to have been for operational reasons and in accordance with the relevant provisions of the Security Industry (State) Award an apparent ongoing tension between the parties manifested itself, amongst other things, in lodgement by the applicant of a complaint with the Human Rights and Equal Opportunity Commission which was resolved by a signed agreement entered into between the applicant and the respondent on 13 April 2000. 6 I note in that regard the further evidence that the agreement was entered into after several meetings and written correspondence between the respondent and the applicant and his union at the time, the Australian Liquor Hospitality and Miscellaneous Workers' Union. 7 The terms of that agreement are in evidence, are included in the documents attached to the application presently before the Commission and are part of Exhibit A in the proceedings, whereby on the one hand the applicant stipulated the times he was available for work and on a four-week rolling roster; and on the other hand the rostered hours he was required to work within that availability were set out with both matters being signed off by the applicant and confirmed by the respondent. The parties thereby agreed, and significantly so in the context of these proceedings, that, among other things, the roster would not change unless by mutual agreement or, importantly, unless there is a change in the hours required to be covered by the Castle Towers Management, the managing agents for a large shopping complex in northwestern Sydney and an important client of the respondent. 8 Additionally, it was agreed that the applicant's employment status would change from permanent full-time to permanent part-time. 9 Although he may not have been completely happy with his altered employment arrangements, there was no basis in the evidence on which to conclude that the applicant entered into that agreement other than by his own free will and it is therefore appropriate that it be a starting point, as the respondent submits, for an analysis of the circumstances leading up to the cessation of his employment. 10 It would seem that the Castle Towers Management team shortly thereafter substantially increased its requirement for security services such that the applicant's part-time hours of work were subsumed into various full-time positions, advertisements for which were published. 11 The applicant did not apply for these positions, a fact which, on the evidence today, is unsurprising, given the applicant's ultimate concession that he was working a substantial number of hours, perhaps up to forty per week, in other employment at Warringah Mall. 12 The residue of security coverage required under the new arrangements with the Castle Towers Management people meant that the respondent, in addition to the newly created full-time positions which were advertised, and for which I again observe the applicant did not apply, had only two casual shifts each weekend which, on the strength of his stated availability, the applicant would not be able to fill or would only be able to fill each second weekend. 13 The respondent, nonetheless, offered the applicant a further change in his employment status from part-time to casual, in which case he would be considered for work consistently with his availability. The other option canvassed with him was his resignation. 14 What next transpired, it would seem, was that the applicant's union made representations to the respondent, or it may have been that the respondent approached the applicant's union, but either way that resulted in agreement being reached to the effect that the applicant's position was redundant, thus giving rise to discussions and negotiations in which the applicant was directly involved as to an appropriate redundancy package. 15 I do not accept, and find it highly improbable on the evidence as I view it that the applicant having been present during those discussions, did not acquiesce in the outcome, although one may understand in that regard why the outcome may not have been completely pleasing for him. 16 The respondent's evidence was that the applicant in the presence of the union agreed to the negotiated package, and although there may have been some controversy about that in the evidence, I accept that on the balance as an accurate portrayal of what transpired. Further, that the calculations of the respondent in that regard were, at the applicant's request, faxed to and checked and confirmed by the union, and that moneys were thereafter paid into the applicant's bank account by, it would seem, electronic funds transfer. 17 The applicant returned his uniforms to the respondent on 6 June 2000 and filed his application for unfair dismissal on 7 June 2000. 18 This is a case where, it is fair to say, I think, that the applicant's undoubted redundancy is a source of ongoing frustration and dissatisfaction to him, and one may say unsurprisingly so. It is clearly not an outcome that he would have wished. Moreover, his feelings in that regard are so obviously intensified by his perception and his continued assertion throughout the course of these proceedings that his employer, the respondent, had breached the agreement reached on 13 April 2000 by unilaterally altering the agreed roster. 19 It is difficult, on reflection, to understand his unwillingness, or inability, as the case may be, to accept that the very essence of the agreement he relied upon permitted the respondent to alter the agreed roster if there was an alteration in the hours required by a major client for security services to be provided. 20 Having done so, consistently with the terms of their agreement, the respondent, it would seem to me, is under no obligation to create and maintain a rostering arrangement which ignores, or is inconsistent with, changed business or operational requirements; and whilst one may observe on a personal level that such changed requirements can and do result, from time to time, in regrettable disruption to employment relationships by way of redundancy it is nonetheless the case that the Commission will only intervene, as Mr Butterfield for the respondent says, where the redundancy is shown to be a sham or where there are other elements of substantive or procedural unfairness associated with it. In this case the evidence discloses no such cause for intervention, but rather a change in the operational requirements of the respondent's business, which in turn led to an alteration of the agreed roster in consequence of which the applicant's position became genuinely redundant. 21 The application is dismissed accordingly.