Akashdeep Singh v The Trustee for Maan Family Trust
[2022] FWC 1301
•11 JULY 2022
| [2022] FWC 1301 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Akashdeep Singh
v
The Trustee For Maan Family Trust
(C2021/8291)
| DEPUTY PRESIDENT BELL | MELBOURNE, 11 JULY 2022 |
General protections dismissal dispute – jurisdiction - whether applicant was dismissed – jurisdictional objection dismissed.
Mr Akashdeep Singh (“the Applicant”) has applied under s.365 of the Fair Work Act 2009 (“Act”) for the Fair Work Commission (“Commission”) to deal with a general protections dispute involving dismissal.
The Trustee for Maan Family Trust (“the Respondent”), by its F8A Response filed with the Commission, raised a jurisdictional objection to the application on the ground that the Applicant had not been “dismissed” as is required by s.365(a) of the Act.
As the question of whether the Applicant was dismissed or not is a threshold matter going to the Commission’s power to hear the dispute, I am required to determine that issue first.
General observations
By way of overview, the critical event relied upon by the Respondent concerns a single conversation, held at around 5.30pm on 28 November 2021, between the Applicant and Mr Abbas Mehr by telephone. The Respondent asserts, in effect, the Applicant said during that conversation that he no longer wanted to work for the Respondent any more. The Applicant disagrees.
There was some history leading up to that conversation. I will set out the more salient aspects below, although many of those matters are also in dispute. It is sufficient to note that aspects of that history might be seen as supplying an explanation for why (on the Respondent’s case) the Applicant effectively resigned or why (on the Applicant’s case) that did not occur. That history provides some context for the conversation that occurred on 28 November 2021. It is, however, unnecessary for me to resolve those historical factual disputes and I do not consider either party’s version of events is such as to shed any definitive light on what was said - or not said - in a short telephone conversation at around 5.30pm on 28 November 2021.
Events before 28 November 2021
The Respondent’s business includes running a speciality shop, trading under the name ‘Grocer Eez’. The Applicant was engaged to work at the business in around October 2021, although there were conflicting statements about these dates.
The Respondent described the Applicant as a “Contractor”, not an employee. No contract was put before me to show he was an independent contractor. If he was an employee, he would be a casual. If the Applicant was not an employee, then I doubt that he is required to apply through s.365 to the Commission at all, because that section applies to a person who has been “dismissed”. Section 386 provides that a person is “dismissed” in all relevant cases only involving “employment” or an “employer”. It would also follow that the Respondent’s jurisdictional objection would become irrelevant. I have proceeded on the basis that the Applicant’s engagement is, properly considered, as a casual employee.
A document submitted by the Respondent states that the Applicant was temporarily engaged “by Grocer Eez to assist during the busy festive time of the year for Diwali period, which is a well celebrated event by the Indian community.” The Applicant’s signed Form F8 described himself as a “Stock Filler”.
On 7 November 2021, the Applicant was working in the store and says a 5kg oil tin fell on the large toe of his left foot. There are disputes about the nature of the injury. The Respondent described it as a “minor bruise”. A photograph tendered by the Applicant indicates that the injury was more than a “minor bruise” – it would appear that a toe nail was lost or clearly damaged as a result of the injury. The Applicant says he was in “severe pain” and, as a result, left the store that day and (on his account), had a car accident due to being in severe pain.
According to the Respondent, and as appears to be the case, the Applicant advised on 9 November 2021 that he was unable to work. Shortly after, the Applicant’s pay for work done to that date was made, following the Applicant’s request.
On 15 November 2021, the Applicant wrote by a Whatsapp message that “I want to confirm that can I start from tomorrow morning plz”. He was advised to “Rest well and stay tuned”. The Respondent says there was not a specific roster slot available for immediate start, although the Applicant says he was taken off the Whatsapp group and was effectively frozen out.
On 23 November 2021, the Applicant submitted a Worksafe “Certificate of Capacity”. That document indicated he could not “lift” and “Cannot stand for prolong periods of time in grocery store. Not fit for work. Review 07/12/21”. The Certificate of Capacity stated that the Applicant would be unable to work until 7 December 2021.
What follows is a greater source of conflict between the parties. By way of example, there was a possible claim by the Applicant for damage to his car. The Respondent’s documents prepared for the Commission suggest these represent a “falsified financial demand”, the damage was for a non-work trip, and says the Applicant “claimed to have paid $3,000 in cash on spot to the other related vehicle.” The details of this were not advanced before me.
On 25 November 2021, the Respondent engaged Mr Mehr to assist it. Mr Mehr was not an employee or officer of the Respondent. Mr Mehr is a chartered accountant. The Respondent’s material states that Mr Mehr has been associated with Grocer Eez since 2014 in various capacities including financial accounting, bookkeeping support and other tasks. It would appear that Mr Mehr was acting as the Respondent’s agent in respect of the investigation and resolution of those matters.
On that same day, Mr Mehr called the Applicant. Among other matters, he said he was seeking various documents about the Applicant’s claims. Mr Mehr also sent a document titled “Information Request” that day. The Information Request sought a number of documents but a number of them indicated some scepticism about the Applicant’s claims. For example, the Applicant was to provide:
“A detailed reason for NOT wearing proper PPE (Work Shoes)” in contravention of stated safety policies.
A copy of the police report for the vehicle accident.
An explanation as to why an injury on his left foot affected his driving of an “Australian Standard Right Hand Drive Automatic Transmission”.
Details, including doctor reports, for “an amount of $1,250 claimed by you on account of Medical Expenses”.
Details of any medications he was taking.
Details of the Applicant’s addresses in the last 5 years. The notes accompanying this item in the request stated “We or Our Insurance Company may obtain a Federal Police Check and any adverse findings may have an impact on the whole process. Concealment of any information / data may constitute a Criminal Offence.”
None of the information or documents appear to have been provided, at least within the next few days. According to the Respondent, on 26 November 2021, the Applicant had a conversation with Mr Mehr where, apparently, the Applicant told Mr Mehr he did not have any of the documents, at least for the medical expenses. The Applicant’s version is different. The Applicant, with some force, contended there were a large number of documents being sought and there was no particular time to provide them other than “as early as possible” per the covering email under which the request was sent. It is unnecessary to resolve the differences, as what happened next was a meeting scheduled for Sunday, 28 November 2021.
Mr Mehr was located in NSW. He drove to Hoppers Crossing, Victoria, for the meeting, which occurred in a café. The content of the meeting is disputed. The witness statements shed little light.
Mr Mehr’s written statement recorded the following:
“I confirm that I met Mr. Akashdeep Singh on the 28th November, 2021 (upon his telephonic request) under authority of Ms. Shweta Maan to discuss and gather information, documentary evidence(s) and financial statements which may help in processing an Insurance claim to assist Mr. Akashdeep Singh.
Further, I declare that my mandate for acting on behalf of Ms. Shweta Maan was solely to discuss the possibility of filing an Insurance claim for Mr. Akashdeep Singh.
On the day of the meeting, Mr. Akashdeep Singh, called me between 5:30 pm - 6:30 pm (which was approximately within 3 hours after the meeting) and told me that he had a discussion with his family and friends, and based on their advice, he has decided – not to work for Grocer Eez anymore.
I did call Ms. Shweta Maan, immediately after Mr. Akashdeep’s call and shared his statement and Ms. Shweta Maan can confirm my call on this statement.”
The Applicant’s written statement relevantly stated:
“On 28th November 2021 their accountant Mr.Abbas [Mehr] met me and assured me to resolve the matter on terms if I sign the settlement form which he had printed already. I signed the form but never received any response/compensation.”
While the Applicant’s statement was brief, that is at least explained by the fact that English is not his native language. At the hearing, he gave his evidence through a Punjabi interpreter. While he was nonetheless able to follow much of the proceeding, and he could write in English to a reasonable degree, I have taken into account that English is not his preferred language and he was not strong in written or spoken form.
The Applicant’s Form F8 sheds some further light on the nature of his claim. He states:
“When i got injury, even after two weeks they did not contact me. However, they did not even reply back to my messages. And after that I had a word with Fair Work and Job Watch. They email me a form of claim of capacity certificate and ask me to fill it and hand it over to your owner.
After this, when i drop the form at shop, they remove me from the employee whatsapp group. And somebody told me that my owner throw that form of claim of capacity in rubbish bin. Then after few days, CA [i.e. Chartered Accountant] of my owner [i.e. Mr Mehr] contacted me and ask me to meet him for the settlement. Then he force me to sign the settlement paper and said after you sign on this settlement paper, only then the employer will give you your salary and medical expenses.”
The oral evidence of their face-to-face meeting on 28 November 2021 was also in conflict. The Applicant contends that Mr Mehr was only interested in getting him to sign a proposed settlement deed. He says he was pressured to do so. Mr Mehr disputes that characterisation. The Respondent’s material also says Mr Mehr stated that all the clauses of deed were explained to the Applicant “both in English and his native Punjabi language to ensure thorough understanding”.
What is not in dispute about the meeting is, unfortunately, quite confined. At the least, it was acknowledged that:
the meeting was at a café.
the meeting went for about an hour or slightly less.
Mr Mehr arrived at a meeting with a pre-prepared settlement deed.
the Applicant signed that settlement deed.
The settlement deed, as signed by the Applicant, was in evidence. It would appear that it was not, at that time of the café meeting, signed by the Respondent and that the version before me was the document as later signed. It is not necessary to set out its terms but some of them perhaps shed light on what was discussed at that meeting and the nature of it. According to the deed:
The Applicant (called “the Contractor” in the deed), withdrew “his TAC Medical Certification dated 23 November 2021” and “all claims financial and otherwise”.
The Contractor committed to “an improved level of responsibility and better work practices to ensure safety at work”.
The Contractor declares his claim (now withdrawn) “was solely due to a misunderstanding with no intent to cause any damage financial or otherwise or to indulge in any legal dispute”.
The Respondent (called the “Company” in the deed) states that the withdrawal of the Contractor’s claims “be considered with positivity and that the apology accepted in true spirit of reciprocating the goodwill gesture.”
The Company “will cease any active legal proceedings which may have been initiated to counter the TAC Medical Certification and any claims arising out of this notice - financial, legal or otherwise”.
There were other terms to similar effect (with some repetition), and other terms purportedly recording the parties’ free will and mutual consent, among others.
I infer from the terms of the deed that the Respondent did not accept, at a factual or legal level, many or all of the Applicant’s claims. The foreshadowed counterclaim is an indication of this, together with the “apology” recorded in the deed. This is also reflected by the Respondent’s statement to the Commission dated 22 December 2021:
“The complainant never discussed any incident relating to his vehicle, and a possible incident happening between 15 November 2021 and 23 November 2021 is being deliberately pushed back to make a falsified financial demand. The complainant after 23 November 2021, started a heavy amount of vehicle damage to his car and a substantially high amount, which he claimed he paid in cash at the spot to the affected party.” (emphasis added).
After the café meeting, it is at least agreed that Mr Mehr commenced his return drive back to NSW, a trip that would take a number of hours. The Applicant says, in his oral evidence, he made numerous telephone calls (and attempts to call) Mr Mehr during this time. The tenor of the Applicant’s reason for doing so was that he was concerned about whether or not the Respondent was also going to sign the deed. He also wanted a copy of the deed.
I would pause at this point and make two observations about the evidence, such as it was presented to me, about the historical conduct leading up to and including the café meeting as I have set out above.
First, at one level, that material supports an inference that the Respondent was keen to terminate its engagement with the Applicant. The material shows, on the Respondent’s view, a belief that the Applicant was seeking compensation for a vehicle accident in which he possibly paid the other driver $3,000 in cash on the spot, without obtaining any details or written acknowledgement at all. In fairness to the Respondent, such behaviour (if it occurred) would generate scepticism and suspicion, if not outright disbelief on the Respondent’s side. Three-thousand dollars is not a trivial amount, let alone it being carried at the time on person and paid in return for no written record or acknowledgement at all.
Another theme of the Respondent’s position was that the Certificate of Capacity was, in effect, an improper claim. While I accept that the Applicant did suffer an injury on 7 November 2021, the Respondent made various references to the fact that (as was the case), the Applicant sent a message on 15 November 2021 asking for work and then, on 23 November 2021, he declared he was unfit for work until at least 7 December 2021. While there may in due course be an explanation, the request for work followed by a statement a week later asserting an inability for work were apt to cause suspicion with the Respondent. Again, these are matters that call for an explanation that was not satisfactorily provided at the hearing before me.
Perhaps an unsatisfactory reflection on the Respondent’s conduct is the assertion that the Applicant was at fault for the injury and not entitled to make a claim. The Respondent’s response to the Applicant’s claim appears heavy handed but, regardless of the rights or wrongs on that point (which I express no conclusions upon), it does supply another reason as to why the Respondent no longer wanted to engage the Applicant. Also according to the Applicant’s written material, the Applicant allegedly revealed during the course of the café meeting a number of prior “police incidents”. I express no views about these and no explanation was given to me but it again, if that was the view of the Respondent, it makes it more plausible that the Respondent did not wish for the Applicant to be on its books any longer and decided it would no longer offer further work.
Pointing in the opposite direction are the Applicant’s views. He alleges he was coerced to sign a deed that he did not wish to sign. That belief makes the prospect of him telling the Respondent he no longer wished to work for them more plausible. Similarly, the Applicant refers to claims for unpaid salary. It is not clear what the claim for unpaid salary is (and it was not explained) but it is again shows a possibility that, perhaps believing himself poorly treated, the Applicant wanted nothing more to do with the Respondent and said as much to Mr Mehr. (This would raise different considerations as to whether this nonetheless amounted to a termination at the Respondent’s initiative, but the Applicant does not assert this and I do not need to decide it.)
Consideration
With that background and context, the conversation in which the Applicant allegedly walked away was a short call at about 5 or 6pm on 28 November 2021. The witnesses broadly accept that there were calls around this time, although the Applicant denies he said the words alleged. To be satisfied on those matters, I need to accept the Respondent’s evidence reaches such a level. While the conduct leading up to it was given some prominence by the parties, I am not satisfied it provides any helpful understanding (noting, as I have above, that aspects of that material points in both directions.)
Ultimately, I am not satisfied that the Applicant resigned or otherwise said he was walking away. Mr Mehr’s statement briefly says that the Applicant “told me that he had a discussion with his family and friends, and based on their advice, he has decided – not to work for Grocer Eez anymore”.
While I accept that Mr Mehr was doing his best to be a truthful witness, I am not satisfied that his generalised summary about a conversation (as distinct from the actual words said) he had about 6 months before giving evidence amounts to more than describing the effect or substance of that conversation as he perceived it. Noting that both witnesses were fully conversant in Punjabi, it was not explained what language the conversation was in. If it was in English, I have observed for myself that the Applicant’s oral English was not strong. If in Punjabi, then the evidence is a translation from precise words that were not put before me or the witnesses.
There were no notes of the conversation. That itself is understandable on Mr Mehr’s behalf, as it appears he was driving. However, the fact of the event was not subsequently recorded. It was a significant event and, yet, the email sent by Mr Mehr at 8.12pm (attaching a copy of the deed) only an hour or two later makes no reference to it. That email did record other matters in some detail, including revisiting various matters in the deed, such as the Applicant’s “misunderstanding”, the “irrevocable” withdrawal of the Applicant’s claims and that the Respondent has now “agreed to cease” any active or planned legal claims against the Applicant.
Mr Mehr says he conveyed the Applicant’s words to the business owner, Ms Maan. However, in this respect, Ms Maan did not give evidence. Moreover, on Mr Mehr’s own evidence, his “mandate for acting on behalf of Ms. Shweta Maan was solely to discuss the possibility of filing an Insurance claim for Mr. Akashdeep Singh.” (emphasis added). His mandate was not to discuss the engagement of the Applicant or to accept any resignation or termination of that contract or to act as a conduit on the Respondent’s behalf for that matter.
The Respondent argues that the Applicant was not working (according to the Certificate of Capacity) until 7 December 2021 and that it was not necessary for them to do anything at that stage. While this suggests that the Applicant’s monetary claim might be weak (noting also the evidence before me indicates his engagement was primarily for a festival period) whatever else might be said about the merits of his claim, I am sufficiently satisfied that, in my mind, the Respondent had nonetheless decided not to roster the Applicant for any further work. If nothing else, that decision crystalised once the general protections claim was lodged on 5 December 2021.
Conclusion
Accordingly, the Respondent’s jurisdictional objection is dismissed. The matter will be listed for a conciliation.
DEPUTY PRESIDENT
Appearances:
A Singh on his own behalf.
S Maan from the Respondent.
Hearing details:
2022.
Melbourne (by video link via Microsoft Teams):
May 23.
Printed by authority of the Commonwealth Government Printer
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