Didar Singh v Pirovic Enterprises Pty Ltd

[2019] FWC 7132

[2019] FWC 7132

FAIR WORK COMMISSION

DECISION

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

Didar Singh
v
Pirovic Enterprises Pty Ltd
(U2019/4297)

DEPUTY PRESIDENT BOYCE SYDNEY, 7 NOVEMBER 2019

Application for an unfair dismissal remedy —whether the Applicant was “dismissed” — whether a person's employment has been terminated on the employer's initiative — whether a person was forced to resign because of conduct, or a course of conduct, engaged in by his or her employer — application for an unfair dismissal remedy dismissed for want of jurisdiction.

Introduction

[1] On 15 April 2019, Mr Didar Singh (Applicant) lodged an application for an unfair dismissal remedy with the Fair Work Commission (Commission) by filing a Form F2 through the Commission’s website. The Applicant claimed he had been unfairly dismissed by his former employer, Pirovic Enterprises Pty Ltd (Respondent), on 12 April 2019.

[2] On 24 June 2019, the Respondent emailed a Form F3 to the Unfair Dismissal Team at the Commission, in which the Respondent denied that the Applicant had been unfairly dismissed. Further, the Respondent raised a jurisdictional objection to the Applicant’s claim, namely that the Applicant voluntarily resigned from his employment and so was not dismissed within the meaning of s.386 of the Fair Work Act 2009 (Act).

[3] On 26 June 2019, the Commission held a conciliation in order to provide the parties an opportunity to resolve the dispute by agreement. The parties were unable to settle their dispute and the matter was programmed for arbitration.

[4] On 23 August 2019, I held an arbitration hearing in Sydney. In attendance was the Applicant, who appeared for himself. Mr Marty Pirovic, Human Resources Manager, appeared for the Respondent.

[5] Having considered the parties’ submissions and evidence provided prior to and during the hearing, I have determined that the Applicant was not dismissed within the meaning of the Act. As such, I find that the Commission does not have jurisdiction to entertain the Applicant’s claim for an unfair dismissal. The reasons for my decision are as follows.

Background

[6] In or about June 2007, the Applicant was employed by the Respondent as a Farm Hand. There were no submissions or evidence to suggest the Applicant’s performance or conduct was ever brought into question, and there was certainly no evidence to suggest that any issues regarding the Applicant’s performance or conduct were raised by the Respondent throughout the course of the Applicant’s employment.

[7] On or about 2 April 2019, the Applicant verbally requested that he be paid out the balance of his accrued annual leave. The Respondent paid out the balance on 9 April 2019.

[8] On 11 April 2019, the Applicant did not attend the workplace. The Applicant submitted that he took personal leave because of a medical illness. The Respondent did not cavil with the Applicant’s submission on this point.

[9] On 12 April 2019, the Applicant returned to the workplace. On that same day, there was a verbal altercation between or involving the Applicant, and Mr Steve Saliba, Mr Frank Pirovic, and Mr Antonio Di Milo.

[10] There was significant disagreement between the witnesses as to what occurred during and following that verbal altercation. In summary, the Applicant claims that he was directed to leave the workplace for discriminatory reasons by Mr Saliba and Mr F Pirovic. The Applicant submits the direction to leave the workplace in these circumstances amounted to a dismissal.

[11] On the other hand, the Respondent denies that Mr Saliba and Mr F Pirovic directed the Applicant to leave the workplace. Instead, the Respondent submitted the Applicant left the workplace on his own accord, because he was directed to do tasks that he refused to perform. Further, the Respondent submitted that the Applicant gave verbal notice of his resignation as he left the workplace.

[12] The different accounts as to what occurred during the verbal altercation are significant. Careful regard needs to be had to the evidence on this point to determine if the Applicant was dismissed within the meaning of the Act. If the Applicant was not dismissed as he claims, then the Commission does not have jurisdiction to hear the Applicant on his claim any further.

Whether the Applicant was dismissed

[13] A person who has been dismissed may apply to the Commission for an unfair dismissal remedy. 1 If a person is not “dismissed” within the meaning of the Act then the Commission does not have jurisdiction to hear the unfair dismissal claim.

[14] Section 386 of the Act provides the meaning of “dismissed”:

“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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part”.

[15] I turn now to consider the parties’ submissions and evidence, and whether the Applicant was “dismissed” by reference to definition provided for in s.386 of the Act.

Applicant’s evidence

[16] The Applicant’s witness evidence was that he had an “argument” with Mr Saliba and that argument occurred in the workplace. The Applicant says that argument was about “work activities”. More specifically, the Applicant submitted the argument was in regard to the Applicant being assigned “extra work unfairly” and that he was accused of “not finishing pending jobs [from] two days prior”. The Applicant said that Mr F Pirovic joined the verbal altercation. The Applicant denies that Mr Antonio Di Milo was present.

[17] The Applicant says that either Mr Saliba and Mr F Pirovic said, “you [the Applicant] are unable to perform extra work activities because you are now old man and go home”. The Applicant said he left the workplace as a “mental person” (which I understand to mean the Applicant returned home feeling distraught, angry and frustrated at what he said occurred).

[18] In cross-examination by Mr Pirovic, the Applicant was asked what work activities he was given that he thought were unfair. 2 In summary, the Applicant thought it was “unfair” that he had been instructed to perform work that was required of him the day prior, which the Applicant said he did not attend to because he was away from the workplace on personal leave. The Applicant said that such work should have been attended to by other employees who were present on the day he was absent and so it should not fall on him to do “two jobs”.3

[19] The Applicant acknowledged that he was being given a direction by his employer as to the work he needed to do. 4 However, the Applicant took exception to the fact the he was being directed to do tasks from the day prior. He also took exception to the order of the tasks he was being directed to perform.5

[20] Regarding what was said during the argument, Mr Pirovic asked the Applicant who dismissed him. The Applicant said, “when you told me ‘You have to do both the work’ then I said ‘It is not possible for me’. Frank got angry then he told me that if you can’t do the work then go home”. 6

[21] I asked the Applicant who said, “If you’re unable to perform the extra work activities because you’re now an old man, go home” (which were the words as the appeared in the Applicant’s witness statement). The Applicant said that those words were said to him by Mr F Pirovic. 7

[22] I asked the Applicant if he was aware that Mr F Pirovic denies saying that the Applicant was an “old man”. I also asked him what the Applicant says about Mr F Pirovic denial. The Applicant responded as follows:

“When the matter was raised about extra work, that 'You could do the extra work', I told him that 'I'm now 65 years old and I cannot do the overtime' and he said 'No, you have to do this work and go'. After I said he got angry, 'You have to do both the work or go home. No, you are an old man, you cannot do the work so please go home'”. 8

Applicant’s submissions regarding the alleged dismissal

[23] The Applicant submitted that he was told to leave the workplace because of a discriminatory reason, being that he was too old to complete the work being asked of him. As I understand it, the Applicant’s case is that the discriminatory direction to leave the workplace amounted to a dismissal.

Respondent’s evidence

[24] The Respondent tendered two witness statements:

•  Witness Statement of Antonio Di Milo dated 8 July 2019; and

•  Witness Statement of Frank Pirovic dated 9 July 2019.

[25] I note that another witness statement was filed on behalf of Mr Saliba. However, that statement was neither tendered at the hearing, nor was Mr Saliba called. I have not had regard to Mr Saliba’s statement in my reasoning.

Mr Di Milo’s evidence

[26] Mr Di Milo’s witness evidence was that he is employed as a Farm Hand and has been in that position for almost four years. On 12 April 2019, Mr Di Milo says he asked the Applicant to finish a task the Applicant had not completed. Mr Di Milo says that task was not finished despite the Applicant having signed off that the task was complete, and that the Applicant had signed it off as complete the day before he took leave.

[27] Mr Di Milo says that the Applicant became visibly upset at this request. Mr Di Milo says that the Applicant went to Mr F Pirovic (who was nearby) to discuss the issue. Mr Di Milo says that Mr F Pirovic called him over and asked for Mr Di Milo’s version of events.

[28] Mr Di Milo says that Mr F Pirovic attempted to talk to the Applicant about the issue but that the Applicant refused to discuss the matter any further. Mr Di Milo gave evidence that the Applicant then walked away from Mr F Pirovic, who called out to the Applicant and asked him not to leave. Mr Di Milo says the Applicant walked away of his own accord.

[29] Mr Di Milo denies that anyone told the Applicant to go home on account of his age.

[30] In examination-in-chief by Mr M Pirovic, Mr Di Milo says that Mr Saliba was also present when the Applicant was arguing with Mr F Pirovic. 9

[31] In cross-examination by the Applicant, it was put to Mr Di Milo on several occasions that he was “bogus and a liar”. Mr Di Milo denied that he was. 10 It was also put to Mr Di Milo that he was not present at the time of the verbal altercation because he was on his break. Mr Di Milo denied that he was on break, and confirmed that he did in fact witness the verbal altercation.11

Mr F Pirovic’s evidence

[32] Mr F Pirovic’s witness evidence was that he is a Director and Technical Manager of the Respondent’s business. Mr F Pirovic says that he is responsible for farm maintenance and animal husbandry.

[33] On 12 April 2019, Mr F Pirovic says he was called by Mr Saliba to deal with a dispute involving the Applicant and Mr Di Milo. Mr F Pirovic says that he understood the dispute to be about the Applicant marking off tasks as being completed by the Applicant, when those tasks had not actually been performed by the Applicant.

[34] Mr F Pirovic says he tried to discuss this issue with the Applicant but that the Applicant refused to do so. Mr F Pirovic says that the Applicant seemed upset and “stormed off”, even after Mr F Pirovic asked him not to. Mr F Pirovic says that the Applicant continually said he was “leaving” as the Applicant walked away from him.

[35] Mr F Pirovic says he “attempted to extend an olive branch” to the Applicant and re-approached him a short time later. Mr F Pirovic says he asked whether the Applicant would reconsider “leaving” but that the Applicant maintained his position and left the workplace.

[36] Mr F Pirovic says that he understood the Applicant’s statement that he was “leaving” to mean that the Applicant was resigning.

[37] In examination-in-chief by Mr M Pirovic, Mr F Pirovic denied having terminated the Applicant’s employment “in any way, shape or form”. 12 Mr F Pirovic denied saying that the Applicant was too old to perform his duties.13

[38] In regard to dismissing employees more generally, Mr F Pirovic denied dismissing employees “willy-nilly”. Mr F Pirovic said he always tries to give employees “the benefit of doubt” and tries to resolve issues before moving to terminate employment. 14 He said that termination occurs “rarely” (which I understand to mean termination at the Respondent’s initiative).15

[39] Regarding the verbal altercation, Mr M Pirovic asked Mr F Pirovic whether the Applicant gave any reason as to why he was leaving. Mr F Pirovic said no reason was given. 16

[40] I asked Mr F Pirovic whether, after the verbal altercation, whether he tried to follow-up with the Applicant about the alleged resignation. Mr F Pirovic said he did not, except to follow him up after several minutes after the altercation. He did so to give the Applicant an opportunity to “cool down”. Mr F Pirovic acknowledged this wasn’t a “great period of time” but that the Applicant appeared “well determined on leaving”. 17

Respondent’s submissions

[41] The Respondent submitted that, on 12 April 2019, the Applicant verbally resigned from his employment by saying that he was “leaving”, and actually leaving the workplace during his working hours. The Respondent’s position is that resignation followed the verbal altercation between Mr F Pirovic, Mr Sailba, Mr Di Mio, and the Applicant. The Respondent submitted that the Applicant resigned because he was asked to do a task that did not believe he should perform. As I understand it, the Respondent’s position is that there was no dismissal viz the Applicant’s voluntary resignation, and thus no case to answer.

Consideration

Was the Applicant’s employment terminated at the employer’s initiative?

[42] It is unnecessary and undesirable to formulate an exhaustive description of what constitutes “termination at the initiative of the employer”. 18 That said, it is important to identify an act of the employer that “directly or consequentially” results in the termination of the employment, and that the employment relationship is not voluntarily left by the employee.19 Put another way, there needs to be some action on the part of the employer that is either intended to bring the employment to an end, or has the probable result of bringing the employment to an end.20

[43] Firstly, recourse should be had to the communications between the employer and the employee to determine whether any of these communications constitutes an express termination. 21 However, no evidence was put before me to show the Respondent expressly sought to terminate the Applicant’s employment.

[44] Secondly, and in the absence of an express statement to that effect, it is then necessary to consider whether any action of the employer amounted to termination of employment. 22At its highest, the Applicant’s case is that he was directed to leave the workplace because of his old age. Without more, however, that direction does not amount to an intention to terminate the Applicant’s employment — especially when viewed in the context of the Applicant having just refused to carry out a lawful and reasonable direction made on behalf of the Respondent. The content of the statement is equivocal; it was not a clear and unambiguous statement to the effect of “leave the workplace and never return”. The Applicant’s own characterisation of what he claims was said by Mr F Pirovic fails to meet the definition provided for in s.386(1)(a).

[45] Regardless of the Applicant’s submissions on this issue, though, I do not accept the Applicant’s evidence as to what was said during the verbal altercation. The Applicant’s witness evidence was inconsistent; he gave conflicting accounts as to who said what to him, both during the hearing and when compared to his written witness statement. He was evasive in answering the questions asked of him and reacted to the questions asked of him with a measure of hostility. Taking into account the Applicant’s limited English, and that his evidence was provided through a translator, I still do not find him to be a credible or reliable witness.

[46] On the other hand, I accept the Respondent’s evidence. The evidence of the Respondent’s witnesses was consistent and credible. They were able to attest to what was said during the verbal altercation, and the cause of that altercation (being the Applicant’s unwillingness to perform tasks he did not believe he was responsible for). I found Mr F Pirovic to be a particularly honest witness, and I accept his account of events as what occurred.

[47] I accept that Mr Saliba and Mr Di Milo directed the Applicant to carry out certain tasks. I accept that the Applicant refused to carry out those tasks. I accept that the discussion that followed was heated and that the Applicant took exception to what was being asked of him. Most importantly, I accept that the Applicant verbally resigned by saying that he was “leaving” and not returning to the workplace. I accept that Mr F Pirovic attempted to clarify with the Applicant that he was leaving, and that the Applicant confirmed that he was.

[48] In light of the above, I find that the Applicant’s employment was not terminated at the employer’s initiative. It was terminated because the Applicant resigned of his own accord. Section 386(1)(a) does not apply in this matter.

Did the Applicant resign from his employment in circumstances where the Applicant was forced to resign because of conduct, or a course of conduct, engaged in by the Respondent?

[49] From the outset, I note that neither party sought to put submissions as to whether the Applicant resigned from his employment in the circumstances contemplated by s.386(1)(b). I do not propose to make any finding in relation to this point on the evidence before me. What argument could, or should, have been put by either party cannot be speculated on in my role as arbitrator, let alone resolved.

Conclusion

[50] In the absence of a dismissal, the Fair Work Commission does not have jurisdiction to further entertain the Applicant’s claim for unfair dismissal.

[51] The matter is to be dismissed. An order to that effect will follow this decision in due course.

Appearances:

The Applicant appeared for himself.

Mr Marty Pirovic appeared for the Respondent.

Hearing details:

23 August 2019 in Sydney.

Printed by authority of the Commonwealth Government Printer

<PR713371>

 1   Fair Work Act 2009 (Cth) s.394(1).

 2   Transcript, PN23.

 3   Transcript, PN23 to P27.

 4   Transcript, PN29 to 32

 5   Transcript, PN34 to 38.

 6   Transcript, PN38.

 7   Transcript, PN40 to PN44.

 8   Transcript, PN64.

 9   Transcript, PN91 to PN98.

 10   Transcript, PN114.

 11   Transcript, PN106.

 12   Transcript, PN131.

 13   Transcript, PN134.

 14   Transcript, PN137.

 15   Transcript, PN136.

 16   Transcript, PN139.

 17   Transcript, PN160 to PN162.

 18   See: Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 and O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100; applied in Barkla v G4S Custodial Services Pty Ltd[2011] FWCFB 3769.

 19   See: O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at [23].

 20   Barkla v G4S Custodial Services Pty Ltd[2011] FWCFB 3769.

 21 Ibid at [23].

 22 Ibid at [24].