David Eghlima and Hamid Eghlima v Winco Systems Pty Ltd - [2012] FWA 10836

[2012] FWA 10836

FAIR WORK AUSTRALIA

DECISION

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

David Eghlima and Hamid Eghlima
v
Winco Systems Pty Ltd
(U2011/14390, U2011/14391)

DEPUTY PRESIDENT SAMS

SYDNEY, 21 DECEMBER 2012

Applications for unfair dismissal remedies - jurisdictional objection - whether applicants resigned or were dismissed - disputed conversations - resolution of evidentiary conflict assisted by surrounding circumstances - whether dismissals were harsh, unreasonable or unjust - post employment discovery of discrepancies with timesheets - applicants resigned - FWA has no jurisdiction - applications for unfair dismissal remedies dismissed.

[1] Brothers David and Hamid Eghlima (the ‘applicants’) had been employed as Electricians/Technicians by Winco Systems Pty Ltd (the ‘respondent’ or ‘Winco’) since 8 January 2007 and 1 June 2007 respectively. The applicants were required to install and repair electric window systems on a variety of commercial and domestic building projects. These projects included the Universities of Sydney and New South Wales, King Street Wharf, NIB Building Newcastle, Warragamba Dam, Star City Casino and Charles Sturt University in Orange. This being the case, they were required to travel to various work sites in the metropolitan area, in regional locations and interstate, while at all times being under the direct control and supervision of Mr Peter Behrens, the respondent’s owner.

[2] The applicants had both been working on a job in Canberra at the Florey Primary School on 30 November 2011, having driven to the job together that morning. While driving back to Sydney that day, the applicants received two mobile phone calls from Mr Behrens. It was said by the applicants that in the second phone call, Mr Behrens dismissed both of them without warning. The respondent’s version of the conversation was that the applicants had refused to carry out their duties and had effectively resigned their employment, without notice. Unsurprisingly, there is a contest about what was said in these conversations, and in later conversations. I shall return shortly to the evidence adduced as to these conversations and subsequent relevant events.

[3] On 7 December 2011, the applicants filed applications pursuant to s 394 of the Fair Work Act 2009 (‘the Act’) for relief from unfair dismissal. They do not seek reinstatement, but rather compensation under various heads of claim as pressed by their legal representative, MrM Warren on the first day of the hearing of the applications.

[4] It is clear that the first issue which must be resolved by Fair Work Australia (FWA) is whether the Tribunal has jurisdiction to determine the applicants’ unfair dismissal claims. This is a specific requirement of s 396 of the Act which is as follows:

‘Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FWA 10836
Decision Date: 21 DECEMBER 2012

CaseChat Overview and Summary

The applicants, David Eghlima and Hamid Eghlima, brought an application against Winco Systems Pty Ltd, seeking remedies for unfair dismissal. The applicants alleged they were dismissed without just cause or excuse, while the employer contended the applicants had resigned. The dispute was heard in the Federal Circuit Court of Australia. The primary issue before the court was to determine whether the applicants were dismissed or if they had resigned from their employment. A secondary issue was whether the dismissals, if any, were harsh, unjust or unreasonable, entitling the applicants to unfair dismissal remedies.

In addressing the first issue, the court examined the evidence and surrounding circumstances, including the applicants' own accounts of the conversations leading to their departure from the company. The court found that there were significant discrepancies in the applicants' testimonies and the employer's evidence, but concluded that the applicants had indeed resigned. This finding was based on the surrounding circumstances, which suggested that the applicants had chosen to leave the employment voluntarily rather than being dismissed. Regarding the second issue, since the court found that the applicants had resigned, it did not need to determine whether the dismissals, if any, were harsh, unjust or unreasonable.

Consequently, the court found that it did not have jurisdiction to hear the applicants' claims for unfair dismissal remedies. The court dismissed the applications, holding that the Federal Circuit Court of Australia could not entertain claims for unfair dismissal remedies when the applicants had, in fact, resigned. The court did not make any orders for costs.

Orders