Employer argues contract was repudiated when security officer failed to work without notice
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who failed to report for rostered shifts after being in custodial detention.
Meanwhile, the employer argued that he was not dismissed and that his employment ceased at his initiative. It added that this was done by repudiation when he failed to attend his rostered shifts without notice.
Muhammad Ali Qureshi was employed by Spotless Services Australia Limited as a full-time security officer. The employer was part of the Downer Group. It provides, amongst other operations, security services to the South Australian government, including in its health sector. This includes the Royal Adelaide Hospital (RAH).
Worker gets detained
Qureshi was employed by Spotless from 16 May 2022 as a full-time security officer at the RAH. At the time his employment ceased, he worked a five-day roster from Saturday to Wednesday (inclusive) with Thursday and Friday off work.
On 2 April 2023, Qureshi worked a rostered shift until 10.00 p.m. Upon arriving home, Qureshi was spoken to by police and taken to the Port Adelaide Police Station, where he was charged with offences.
He was told that he would remain at the station overnight and be presented to a magistrate the next day. Qureshi was detained at the police station, and his mobile telephone was confiscated.
While in remand, the worker said he:
- Did not have possession of his mobile phone or access to his contacts on his mobile phone;
- Had no access to the internet;
- Was under the control and supervision of the authorities; and
- Was permitted to make telephone calls but only to persons authorised by the authorities. He would then be advised if his request was approved, declined or pending.
Employer was not informed about worker’s situation
According to records, Qureshi “had no actual contact, directly or indirectly, with Spotless or from Spotless [while] in remand and vice versa.”
“As no communication had been made by Qureshi to Spotless, the employer was unsure why [he] had not attended for work.”
The employer said that one of its supervisors tried to call Qureshi three times on his mobile telephone, but there were no answers. Additionally, “an unnamed person claiming to be Qureshi’s wife telephoned the Spotless security control room and said that [he] had left the country for at least a month. The control room operator did not ask the caller for her name.”
Consequently, after the call was overheard by the supervisor, he proposed to “remove” Qureshi from the roster. After a while, the employer sent a letter to the worker which had a statement that said:
“We therefore wish to make it clear that your failure to report for work and failure to provide notification and evidence to our satisfaction for not doing so may be considered to be abandonment of service, leading to the termination of your employment.”
Worker’s arguments
Qureshi argued that there was “no abandonment of employment or repudiation because he took all steps reasonably open to notify Spotless that he was unable to attend for work.”
He said he was “forced into remand and denied access to his communication devices by the custodial authorities.”
He added that “there was no valid reason because Spotless did not act reasonably. It acted on false and anonymous information about him being overseas, and did not verify it. Nor did it contact the emergency contact that he had advised when recruited.”
He further said that Spotless “deliberately avoided his calls and text messages. It refused to engage in discussion when he wanted to explain his circumstances. Only by using a friend’s telephone and not his own did a Spotless manager answer his call.”
He said the employer’s “dismissive approach added hurt and damage,” saying that it “never gave him a fair go or seriously considered his plea to be re-employed.”
Qureshi said that “he has been treated unfairly. Unfairly by police and custodial authorities; unfairly by an anonymous caller; let down by some friends; and unfairly by Spotless.”
Meanwhile, the employer said Qureshi “failed to attend for work as required and rostered over a two-week period.”
“He did so without notice, without explanation and without contact,” the employer said. It added that it “did not know and had no reasonable grounds to believe that Qureshi was in remand or had an explanation for his absences and non-responsiveness.”
HRD previously reported about a worker who argued that he was still employed while serving time in jail.
Was there unfair dismissal or not?
The Commission noted that Qureshi “did not intend to fail to attend for work and that he made reasonable efforts when in remand to notify Spotless,” adding that “it was circumstance and not intent that gave rise to the breach of his obligation to turn up for work.”
However, it also said that he “failed to attend multiple rostered shifts without approval and without prior warning or timely explanation. The obligation to turn up to work at the appointed place and time was an essential feature of his employment as a security officer.”
“The employer had no insight into the reason for his non-attendance. The employer took reasonable steps to alert [him] to his obligation on each occasion he missed a shift,” it added.
“After an absence of six shifts, [his] failure to attend for work as rostered so struck at the heart of [his] employment obligations that it objectively signified an inability (although not an intention) to render substantial performance of the contract.”
Thus, it said that the worker’s conduct “was repudiatory,” and said that he was not dismissed.
