Dhurba Chhetri v
[2024] FWC 1139
•2 MAY 2024
| [2024] FWC 1139 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dhurba Chhetri
v
Unilift Equipment & Sales Pty Ltd trading as The Trustee for Unilift Equipment & Sales Unit Trust
(U2024/1503)
| COMMISSIONER MCKINNON | SYDNEY, 2 MAY 2024 |
Application for an unfair dismissal remedy – whether dismissed
Mr Dhurba (“Dhurv”) Chhetri was employed by Unilift Equipment & Sales Pty Ltd trading as The Trustee for Unilift Equipment & Sales Unit Trust (Unilift) as a Warehouse and Freight Handler from 29 June 2023 until 29 January 2024.
On 13 February 2024, Mr Chhetri applied in time for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). Unilift objects to the application on the basis that Mr Chhetri was not dismissed, and that only a person who has been “dismissed” can apply for an unfair dismissal remedy under s.394 of the Act.
The question is whether, for the purposes of s.386(1)(a) of the Act, Mr Chhetri’s employment was terminated on the initiative of Unilift or whether he resigned from his employment.
For the reasons below, I find that Mr Chhetri was dismissed by Unilift on 25 January 2024 and the dismissal took effect on 29 January 2024. The jurisdictional objection will be dismissed.
Was Mr Chhetri dismissed?
Section 386 of the Act sets out the circumstances in which a person is taken to have been “dismissed” for the purposes of s.394. That section provides, relevantly, as follows:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
Termination “at the initiative of the employer” means a termination brought about by an employer and which is not agreed to by the employee. A termination of employment can occur at the initiative of the employer even if it is not done by the employer. It requires the action of the employer to be the principal contributing factor which leads to the termination of the employment relationship.
In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[1], a Full Bench of this Commission summarised the position under the Act in relation to resignation that may amount to a termination at the initiative of the employer. The Full Bench observed, in relation to s.386(1)(a) of the Act, that:
“(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.”
The facts
In this case, the facts in dispute turn on what happened in a meeting between Mr Chhetri and his managers on 25 January 2024 when he is alleged to have said that he didn’t “want to work for Unilift anymore”.
On 25 January 2024, Mr Chhetri was one of several employees asked to attend individual meetings to review their performance. The meeting was characterised by Mr Robert Thornley (Operations Manager) as a quarterly review to “get it over with”; to decide what to do about keeping the relationship going or moving on. Mr Chhetri was given 2 hours notice of the meeting, which proceeded in the boardroom with Mr Caleb Scott (Sales Manager), Mr Calvin Scott (Director) and Mr Thornley.
The meeting began with Mr Thornley going over what was happening at work and things that Mr Chhetri could improve on. As the meeting went on, Mr Chhetri became increasingly agitated. He raised his voice, pointed his fingers and was moving around. His manner was described by each of the managers present as variously “aggression, anger”, being “frustrated and annoyed”, and “defensive, angry”.
While in this state of emotion, Mr Chhetri said words to the effect of “I don’t want to work at Unilift anyway” and “I don’t want to work with these conditions” in quick succession. Although Mr Chhetri denies it, I accept the evidence of the witnesses for Unilift that words to this effect were said. It is consistent with what followed, and which precipitated an end to the employment relationship.
A few minutes later, the meeting ended. Mr Chhetri left and the three managers looked at each other. Mr Caleb Scott was taken aback. He had thought Mr Chhetri was doing a good job and yet was left with the impression that Mr Chhetri didn’t care about the business; that it was just a job. Mr Calvin Scott said to Mr Thornley, in words to the effect: “Did you hear what Dhurv said?”
They rang Mr Ben Scott, Managing Director, who was overseas. They told him how the meeting had gone and that Mr Chhetri had said he didn’t want to work in the business. The news came as a shock to Mr Scott.
On the afternoon of 25 January 2024, Mr Ben Scott tried to call Mr Chhetri twice with no luck. He sent follow up text messages and eventually got through to Mr Chhetri. Mr Scott explained what the other managers had told him about Mr Chhetri and saying he didn’t want to work at Unilift anymore. Mr Chhetri denied making a statement to that effect. Mr Scott told Mr Chhetri that he would discuss the matter with the board team and get back to him.
At 4.52pm, Mr Scott sent a text message to Mr Chhetri. The message said:
“Hello Dhruv, i just wanted to thank you for everything you have done at Unilift since you started 6 months ago, but after speaking with the 2 Directors and the Operation Manager this afternoon, there is [sic] several issues that keep coming up and it was noted that you made several comments that you “no longer want to work at Unilift anyway”, or something along those lines, and the board has taken this seriously. This conduct does not fit the company culture or agreement that employees signed up for, and Monday 29th January 2024 will be your last day with Unilift.
Regards Ben”.
Mr Scott then followed up the text message with an email to Mr Chhetri on 26 January 2024, as follows:
“Dear Dhruv
I am writing to you regarding your employment at Unilift.
During the last few months, it has been observed that a lack of interest at the company, and your performance to be declining.
After reading the notes from yesterday's meeting that you attended in relation to your performance, it seems clear that you no longer want to work at Unilift.
You mentioned on 2 occasions during the meeting that you “don't want to work at Unilift anyway”.
To be fair, I took it my duty to contact each of the 2 Directors and Ops manager (on separately [sic] occasions) who attended the meeting and each one told me the same story about you not wanting to work at Unilift.
Upon reaching out to Unilift's management, the decision was made to accept that you no longer want to work at Unilift, and we see that it would not be a good fit to drag out your employment at Unilift any longer, because it is not beneficial for either party.
Your last day at Unilift will be Monday 29th January 2024.
We thank you for your time at Unilift and we wish you all the best for your future.
If you wish to respond to this email, please do so.
Kind regards,
Ben Scott
Managing Director”.
In the early hours of 29 January 2024, Mr Chhetri responded to Mr Scott by email:
“Hi Ben & All,
I received your email & text msg regarding your and director's decision about my employment with Unilift. I respect everyone's decision but I would like to clarify the allegation before I leave Unilift.
Firstly, thank you for your feedback regarding my performance, but before this termination decision I was never informed that I was lacking in my performance. It would have been great if you or anyone in the company had given me this feedback earlier. Unfortunately I was never informed about the above -mentioned issues.
If there was any issue with my performance, I would aspect [sic] advice / feedback with an opportunity to improve my performance before taking any action. At least you could have given me any warning before taking this big decision.
Secondly, I would like to reassure you that I have never said that "I don't want to work with Unilift Anymore ”. I am not sure where this rumour comes from, and unfortunately, you believed that.
Furthermore, I am shocked that anyone believes in any gossip in Unilift but I was always committed and dedicated to my work regardless without any support when I was required.
I hope my transition of leaving Unilift will be smooth (as per contract).
At last thank you for the opportunity that Unilift has given to me in the last 6 plus months. Also, I am grateful for the experience and knowledge I gained while working under everyone's guidance. I hope you find success in your future endeavors [sic].
Lastly, I would like to inform you that I won't be able to come to work on Monday (29th Jan).
Regards,
Dhurv Chhetri”.
As he had foreshadowed, Mr Chhetri did not attend work on 29 January 2024. He was only paid up to his last day of work on 25 January 2024.
Mr Chhetri was dismissed
The essence of Unilift’s jurisdictional objection is that when Mr Chhetri said (twice) that he “didn’t want to work at Unilift anyway” he was resigning from his employment. I do not agree.
It is clear on the facts that when Mr Chhetri uttered these words, or words to that effect, he was in an agitated emotional state. He was responding to criticism of his performance and expressing his frustration at the conditions he found himself in the meeting, of which he had only had short notice.
Further, the words themselves did not clearly convey an intent to bring the employment relationship to an end. They could equally have been understood (as indeed they were by Mr Caleb Scott) as indicating a lack of care for the business other than as “just a job” to Mr Chhetri. In the context of a relatively small family business, this seems to have struck a nerve. Even Mr Thornley did not understand Mr Chhetri to be resigning then and there. His expectation after the meeting was that Mr Chhetri would attend work the following Monday, after the Australia Day long weekend.
The action that terminated the employment relationship was the text message from Mr Ben Scott to Mr Chhetri at 4.52pm on 25 January 2024. The message set out two reasons for the decision to bring the employment relationship to an end: Unilift’s ongoing concerns about Mr Chhetri’s performance, and his conduct in saying that he no longer wanted to work at the business. This conduct was said to “not fit the company culture or agreement that employees signed up for”. The message gave notice that Mr Chhetri’s last day of employment would be 29 January 2024.
The email from Mr Ben Scott on 26 January 2024 was generally consistent with the text message of the day before although more nuanced. The email began with reference to an observed “lack of interest” by Mr Chhetri and his declining performance. It referred to Mr Chhetri’s statements in the meeting on 25 January 2024 and concluded that he no longer wanted to work at Unilift. It advised the decision of Unilift management “to accept that you no longer want to work at Unilift” and “that it would not be a good fit to drag out your employment at Unilift any longer, because it is not beneficial for either party”. It confirmed that his last day of work would be 29 January 2024.
In the early hours of 29 January 2024, Mr Chhetri responded to Mr Scott’s email. He again denied saying he did not want to work at Unilift “anymore”. Mr Scott had previously asked Mr Chhetri about what he had said in the meeting of 25 January 2024. Presumably because of Mr Chhetri’s blank denial, Mr Scott did not then seek to clarify what Mr Chhetri had meant to say when he declared angrily that he did not “want to work at Unilift anyway”. Mr Scott did not ask Mr Chhetri if he had resigned, or if it was his intention to resign. Mr Scott did not offer Mr Chhetri the option of remaining in the business. Relying on the reports of the others present in the meeting on 25 January 2024, and after consulting with the Unilift board, Mr Scott decided the employment relationship was no longer in the interests of the business and communicated this decision promptly to Mr Chhetri.
Conclusion
For the reasons above, I find that Mr Chhetri was terminated on 25 January 2024 on the initiative of the employer in the sense contemplated by s.386(1)(a) of the Act. The dismissal took effect on 29 January 2024, as communicated to Mr Chhetri at the time of his dismissal.
The jurisdictional objection is dismissed.
Directions for the further programming of the matter will be issued shortly.
COMMISSIONER
D Chhetri on his own behalf.
B Scott for the Respondent.
Hearing details:
2024.
Sydney (by video):
April 18.
[1] [2017] FWCFB 3941 at paragraph [47].
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