Ather Hadou v Big West Diesel Service Pty Ltd

[2017] FWC 278

[2017] FWC 278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ather Hadou
v
Big West Diesel Service Pty Ltd
(U2016/7782)

COMMISSIONER RIORDAN SYDNEY, 24 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 20 June 2016, Mr Ather Hadou lodged an application pursuant to section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in respect of his termination by Big West Diesel Service Pty Ltd (BWD).

[2] My Layth (Lou) Abedalla was identified as the owner of BWD which is a truck repair shop located in the suburbs of Western Sydney at Wetherill Park.

Background

[3] Mr Hadou began working for BWD on 2 November 2015. His employment was terminated on 16 July 2016.

[4] Mr Hadou stated that he had not been paid for the last 4 weeks of his employment nor had he been paid any superannuation. The day after Mr Hadou requested Mr Abedalla to remedy this situation, Mr Abedalla advised Mr Hadou that he did not have any work for him. The police then visited Mr Hadou’s residence. Mr Hadou was not home but the police allegedly told Mr Hadou’s partner that an AVO had been taken out preventing Mr Hadou from returning to BWD. Mr Hadou did not return to work in accordance with the direction by the police.

[5] Mr Hadou claims that he earned approximately $2000 cash per week but that he had never received a payslip.

[6] Mr Abedalla has not provided an F3 – Employer Response Form at any stage during the proceedings. The Fair Work Commission (FWC) sent reminders to Mr Abedalla to complete this form on two occasions.

[7] FWC listed the matter for a telephone conciliation conference before a FWC conciliator on 20 July 2016. Mr Abedalla failed to attend the teleconference.

[8] On 21 July 2016, the FWC received the following email:

“hello to whom it may concern

We at big west diesel were unable to attend the conciliation meeting between ourselves and hadou.

due to the fact that no one was available as we were attending to an urgent family matter

we would find it appreciartive (sic) to have the matter re heard at the next available time

we are willing to answer any questions even though we believe that this person was never been an employee of the company

should you have any other questions or require anymore information please don’t hesitate to call us on

9729****

sincerely yours

Big West Diesel Service”.

[9] Mr Hadou, through his representative Mr Don Hermez, confirmed the Applicant’s request for the matter to proceed directly to arbitration on 22 July 2016.

[10] A teleconference was convened on 30 August 2016 in order to set new directions and a hearing date. The FWC, as presently constituted, attempted to conciliate the matter with the approval of the parties. Mr Hadou was represented by Mr Hermez. Mr Abedalla was represented by Mr Peter Mitchell from Peter Mitchell Lawyers.

[11] Unfortunately the teleconference degenerated into a shouting contest. When it became impossible for the FWC to be heard, the Conference was terminated. New directions for the hearing were sent out that afternoon.

[12] Mr Hadou advised that he wished to rely on his F2 Application and the Statutory Declarations that had been filed in support of his application.

[13] On 5 October 2016, Mr Mitchell advised that he no longer represented BWD.

[14] On 11 October 2016, my Associate sent an email to Mr Abedalla to remind him that his submissions were due today. This was followed by a phone call to the business. My Associate was advised by the person answering the phone that the business had been sold and that he was now the proprietor. He stated that he did not know anything about the matter nor did he know the whereabouts of Mr Abedalla.

[15] Then, on 13 October 2016, Mr Abedalla sent the following email to my Chambers:

“hello to whom this may concern

thank you for your time on the phone as we discussed I had a family emergency I had to leave the country for 2 weeks and I just arrived this morning I am asking for a time extension to submit my evidence.

thank you for your understanding.

Kind regards , Layth Abdella”.

[16] An extension of time was granted for Mr Abedalla to file his submission and evidence. The hearing date was moved to 4 November 2016.

[17] Mr Abedalla did not comply with the new timetable. My Associate sent correspondence to Mr Abedalla on 28 and 31 October 2016 by email but failed to get a response. An attempt to contact Mr Abedalla on his mobile phone resulted in advice that his phone had been disconnected.

[18] The matter proceeded on 4 November 2016 by way of Determinative Conference. Mr Abedalla did not attend.

[19] Following the Conference, I have sought a copy of the Apprehended Violence Order (AVO) against Mr Hadou. Mr Hadou could not provide me with a copy. I have contacted both the Liverpool Local Area Command and Fairfield Local Area Command of the NSW Police to seek their assistance. I have been advised that no AVO has been taken out against Mr Hadou.

[20] The only submissions that I have from BWD in this matter are the comments by Mr Mitchell at the Directions Conference on 30 August 2016. In summary, Mr Mitchell claimed that there was never an employment relationship between Mr Hadou and BWD. Mr Mitchell claimed that Mr Abedalla allowed Mr Hadou to work on his own trucks but that Mr Hadou was never paid any money from BWD.

[21] Mr Mitchell submitted that there was no employment contract and that no remedy at law exists for Mr Hadou. Further, Mr Abedalla called the police due to Mr Hadou’s behaviour.

[22] It is not in dispute that BWD does not employ more than 15 employees. This matter is therefore subject to the Small Business Fair Dismissal Code (the Code).

The Code

Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[23] The relevant sections of the Fair Work Act, 2009 (the Act), to this proceeding are:

Section 382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Section 383 Meaning of minimum employment period
The minimum employment period is:

(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer--one year ending at that time.

Consideration

[24] I have taken into account the submissions and evidence that has been filed and presented in this matter.

[25] It is very difficult to ascertain the status of the employment relationship due to the lack of any documentation, such as a payslip, which would identify Mr Hadou as an employee. The BWD business card identifies the names and mobile phone numbers of both Mr Abedalla and Mr Hadou. The Service NSW receipt for BWD’s Motor Vehicle Repairs Licence is in Mr Abedalla’s name but was obtained using Mr Hadou’s Trades Certificate. Without contrary argument or evidence, I am prepared to accept Mr Hadou’s evidence and find that he was an employee of BWD.

[26] I note that Mr Hadou only worked for BWD for 7.5 months, which is less than the 12 month mandatory minimum employment period for a small business. As a result Mr Hadou’s application must fail. I find that Mr Hadou is not a person protected from unfair dismissal in accordance with the Act.

[27] The conduct of Mr Abedalla throughout these proceedings has been deliberately misleading, evasive and disruptive to both Mr Hadou and the FWC. Such behaviour cannot be condoned.

[28] The FWC does not have the jurisdiction to deal with Mr Hadou’s claims in relation to the underpayment of his wages and non-payment of his superannuation entitlements. If Mr Hadou wishes to pursue these claims then he should make an application to the Fair Work Ombudsman.

[29] Mr Hadou’s application for an unfair dismissal remedy is dismissed.

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