Published 16 July 2016
The Fair Work Commission found that the dismissal of an ATO employee for not performing his duties was a valid reason for dismissal and was not unfair, unjust or unreasonable.
Mr Shamir was employed by the Australian Taxation Office (ATO) as a Senior Case Profiling Officer, which was classified as the EL1 level. This position was made redundant after the ATO restructured the business.
Mr Shamir was transferred to the audit team in a position at the EL1 level. He was expected to perform this role and was given 68 training courses relevant to his role as a Serious Evasion Audit Leader.
Mr Shamir argued that he could not perform this role because he did not possess the necessary skills or training. In particular, Mr Shamir claimed he lacked the required knowledge to engage in client contact. However, Mr Shamir was able to, and did, send written correspondence to clients.
A new team leader was appointed to the audit team and he required Mr Shamir to perform client contact duties. Mr Shamir refused to perform these duties and he was dismissed for non-performance of duties.
Mr Shamir sought an unfair dismissal remedy from the Fair Work Commission. He claimed he did not perform the duties required of him because he lacked the capacity to undertake these duties.
Mr Shamir also claimed the dismissal was unfair, unjust or unreasonable because the ATO failed to take into account his medical condition and his superannuation benefits were significantly negatively affected by his dismissal.
The Fair Work Commission ruled that the evidence suggested Mr Shamir was provided with sufficient training and support mechanisms and therefore had the required competency to perform his role as a Serious Evasion Audit Leader.
The Commission ruled client contact was part of Mr Shamir’s new role and therefore he was not entitled to refuse to perform these duties. As such, Mr Shamir’s non-performance constituted a ‘sound, defensible and well-founded reason for his dismissal’.
The ATO notified Mr Shamir of the reason for the proposed termination, was provided with steps he should take and given sufficient time to respond.
The Commission ruled Mr Shamir’s medical condition did not indicate the dismissal was harsh, unjust or unreasonable because the ATO offered Mr Shamir temporary transfers after learning of his medical condition and Mr Shamir rejected these.
The Commission ruled the significant disadvantage to superannuation alleged by Mr Shamir was not an indication that the dismissal was harsh, unjust or unreasonable because the Commission found the greater benefits an employee will receive if they remain employed should not discourage an employer from dismissing them for failing to perform reasonable duties.
The Commission ruled there was a valid reason for the dismissal and there was no indication the dismissal was harsh, unjust or unreasonable. Therefore, the application was dismissed.
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