CASENOTE: Commonwealth of Australia v Shamir [2016] FWCFB 4185 (19 July 2016)

Mr Shamir (also ‘Applicant’) (who was respondent on appeal) was employed by the Australian Taxation Office (also ‘ATO’ and ‘Appellant’) as a Senior Case Profiling Officer.

In 2013 the ATO restructured and made the positions of Senior Case Profiling Officer redundant. Mr Shamir and other case profiling officers were transferred to other employment within the ATO at the same classification level. Mr Shamir performed duties in an auditing division of the ATO, answering to another employee at the same level as him.

A dispute emerged as to whether Mr Shamir had the expertise to perform parts of his new audit duties, including ‘client contact’. On 7 April 2015, the Community and Public Sector Union, on behalf of Mr Shamir notified a dispute under the prevailing ATO Enterprise Agreement 2011 (‘ATO EBA’). A senior employee gave directions to Mr Shamir to perform certain specific duties, including client contact. Mr Shamir refused to perform the duties and was sent a show cause letter on 10 June 2015. Mr Shamir relied on the notification of the dispute under the ATO EBA and the status quo provisions of the ATO EA as providing a basis for his refusal to perform duties. With effect from 24 July 2015, the ATO terminated Mr Shamir’s employment and the Applicant sought relief under Part 3-2 of the Fair Work Act 2009 (Cth) (‘FW Act’).

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