The Client’s Word vs Fair Process: A legal tightrope in Employment Law

What happens if a client wants your employee off premises, out of the workplace or dismissed?

Providing employee and labour services to clients is quite a common business model, cleaning, security, mining, construction and engineering are some industries where this happens a lot more.

However, what happens if the client does not want the services of a particular employee??

What are the obligations for an Employer?

In the case of Hussain Siddiqui v Vicpro Security Pty Ltd [2024] FWC 1783, the Fair Work Commission (FWC) dealt with the unfair dismissal of Hussain Siddiqui, a security guard employed by Vicpro Security Pty Ltd and assigned to Victoria University Footscray Park Campus.

Background

The university, which was the client of the security services company, directed the employer to remove two security guards following a verbal altercation between them.

The verbal altercation had escalated to very loud verbal insults including:

·?????? “mother f**cker” ?

·?????? “sister f**cker”

·?????? “I am going to kill you”

Obviously this was very public and was heard by many people at the campus.

The employee had a deep mistrust of management and had performance management issues as well as made numerous complaints about various parts of the role. ?This included his view that he was being targeted to undertake the more uncomfortable or worst parts of the jobs.

After the altercation and an investigation the university provided a commercial contractual directive for the employee to be removed from the university’s security contract services.

Following this, the Employer immediately terminated the employee’s employment with no notice paid.

Unfair Dismissal Claim

The employee filed an unfair dismissal application, claiming the dismissal was harsh, unjust and unreasonable.

The employee claimed amongst other things that the dismissal was:

·?????? Disproportionate;

·?????? There were other positions that he could have obtained;

·?????? He was being treated less favourably.

Both parties it seems were self represented and potentially did not receive any legal advice, and unfortunately it shows as both parties had difficulties in both establishing the elements of unfair dismissal and conversely defending their position.

The employer initially relied upon the valid reason for dismissal being misconduct and then eventually morphed the reason moreso into the rationale of the University providing commercial directions under the contract to remove the employee.? As a result of the contract and the commercial directive, the employer claimed and argued that they would no longer be able to provide employment for the position he was employed to be in.

Findings from the Fair Work Commission

The Fair Work Commission acknowledged that there was a valid reason for the dismissal and was particularly swayed by the client’s (university’s) directive to remove both guards involved in the incident.? Such a directive was in the view of the FWC fair and adequate to take dismissal action even on the commercial reasons alone.

It was also fair in the FWC’s view that there were no alternative positions available if the employee could not be placed at the university.? That is, the directive given by the university, directly affected the employee’s capacity to perform the work he was engaged to perform.

However, the FWC found the summary dismissal without notice to be unfair. It emphasised that even with a client directive, procedural fairness requires notice or payment in lieu of notice.

The FWC ordered Vicpro Security Pty Ltd to compensate Mr Siddiqui with one week's wages ($970.80) in lieu of the notice that should have been provided.

Not a huge loss – but a loss in the Fair Work Commission nonetheless

This case demonstrates very clearly that a client directive will give an employer the ability to dismiss an employee especially when this involves serious conduct issues.? The client in this situation even ran a workplace investigation and considered the findings before making the directive.

However, the employer in its haste to comply with the directive (which had commercial implications) made the decision to immediately dismiss the employee without notice.

Better course of action

Although hindsight can be a little demoralising to think about, all after the fact, this case is still a good example for all human resources and people and culture teams to learn from:

1.????? Immediate or summary dismissal should really only be considered in rare situations.? If the employer had taken a more cautious approach it is unlikely that the unfair dismissal case would have been lost.? It may have a taken a little more time but would have certainly mitigated a lot of the risk and liability.? Vicpro should have been advised to do the following:

a.????? Show cause process; and

b.????? Investigation;

c.?????? Alongside considering the contractual requirements with the client and the commercial impact (which they obviously already did).

2.????? Pay the employee notice.? One of the elements of an unfair dismissal is whether the dismissal is harsh.? This also means the effect on the employee and the payment of the notice period would have been procedurally more fair considering the employee did not go through a show cause process.? Commercially it would have also made a lot more sense.? A deed of release and settlement with a bar to future claims should also have been considered

3.????? Obtain legal advice and representation.? It seems the employer represented themselves in the Fair Work Commission. This is not advisable.? There were comments about how the response was provided especially with the reasoning being a little bit muddied.? Yes, the employer’s compensation to be paid was very low however they still lost an unfair dismissal claim which is now public.?

So what happens if a client wants your employee off premises, out of the workplace or dismissed?

The answer is there will likely be a valid reason for dismissal and there will likely be commercial reasons to dismiss an employee.? However, the dismissal should also be procedurally fair to ensure an unfair dismissal claim does not succeed.

Written by

Jonathan Mamaril

MCom GDLP LLB BA