Hamed Tofighi Mohammadi v ZIMEMO PTY. Ltd
[2025] FWC 287
•3 FEBRUARY 2025
| [2025] FWC 287 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Hamed Tofighi Mohammadi
v
ZIMEMO PTY. LTD.
(C2024/8296)
| COMMISSIONER YILMAZ | MELBOURNE, 3 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal– jurisdictional objection - whether Applicant dismissed or resigned – Applicant dismissed.
This is an edited version of my decision delivered ex tempore and recorded in transcript on 22 January 2025.
On 19 November 2024, Mr Hamed Tofighi Mohammadi lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against ZIMEMO PTY. LTD. (the Respondent). In his application, Mr Mohammadi alleges that he was dismissed in contravention of Part 3-1 of the Act.
The Respondent objects to the application on the basis that the Applicant was not dismissed, stating that Mr Mohammadi resigned by repudiation or otherwise would have been made redundant.
The Respondent submits that the Applicant repudiated the employment contract by refusing to return to the office, and he wrote to his employer regarding this intention and refusal to honour the contract in the future. It submits that the employer accepted the repudiation therefore no termination occurred.[1]
Further, it denies that there has been any breach of the general protection provisions under the Act.
Mr Mohammadi gave oral evidence and was his sole witness in these proceedings. Mr Pasha Golshani, the Director of the Respondent, was cross examined.
Both parties were granted leave to be legally represented. The Applicant by Mr Rohullah Tamas from Fair Work Solutions Pty Ltd, and the Respondent by Mr Murphy Hawkins from Cogent Legal Pty Ltd.
Applicant’s evidence and submissions
The Applicant commenced employment on 7 February 2022 in the position of Digital Advertising Specialist. The Applicant presented evidence, which was not contested, that he immigrated to Australia in 2021, was a marketing specialist in Iran and Mr Golshani was known to him before he came to Australia.
The Applicant gave evidence that the relationship was a professional one but also the two families were familiar to each other.
On 23 July 2024 the Applicant and his wife had a newborn child. He took a week off work, but was informed at the end of that week that the child had been diagnosed with a severe genetic disorder that will limit the child’s life to under a year.
Naturally both parents were shocked at the news, and had to deal with what was required in so far as care for the child etc. The Applicant gave evidence that his wife, the mother of the child, became suicidal.
This placed a heavy burden on the Applicant because the situation required extra medical attention, the close monitoring of the mother of the child by the Applicant. Initially the Applicant had the assistance of his mother-in-law who was visiting briefly from overseas.
The Applicant’s mother-in-law returned overseas in September of 2024.
The Applicant says that he kept his employer informed of all of these details. The texts submitted corroborate this evidence.[2]
It is also relevant that the Applicant and Pasha Golshani had in fact known each other more deeply than as employer and employee, they considered their relationship a friendship between themselves and their respective families, this is borne out in the text messages tendered in evidence.
The Applicant gave evidence that he asked for flexible working arrangements which included Work From Home (WFH) because of the requirement to care for both his child and wife. While I accept a formal arrangement was not made, the two had discussions and progressed to negotiation of the mix of work-from-home and time in the office.
The Applicant tendered text messages covering the period 3 August to 18 November 2024. While the Respondent appeared to be caring and compassionate at first, he did not fully support WFH as he relied on Mr Mohammadi in the workplace.[3] Nevertheless there were negotiations between Mr Mohammadi and Mr Golshani over what the mix would be.[4]
The evidence shows that there were discussions to reach a compromise until 30 October 2024 when Mr Mohammadi says he was dismissed. The text messages submitted show two texts from the Respondent that were deleted. It is alleged that they contain the message of dismissal. The Respondent provides no evidence to explain why the messages were deleted, other than stating he had legal advice to communicate not by way of text but through a letter which was prepared by his lawyer.
While Mr Golshani was overseas, it was agreed that Mr Mohammadi would WFH from 24 September to 15 October 2024.[5]
All of Mr Mohammadi’s access to systems was removed on 30 October 2024.
On 1 November the Applicant received a letter from the Respondent’s lawyer.
Respondent’s evidence and submissions
The Respondent tendered into evidence and relies on three text messages, two from 24 September and one from 30 October 2024.[6] It submits that the Applicant resigned on 30 October 2024 and the 30 October text shows this with the words:
“However if the above points are not acceptable to you, we can move on to the final option you suggested, which ill mention here. That would be for me to give you the time to find a replacement for my role, and for you to give me time to find a new job. Ultimately we would end our collaboration.”[7]
In relation to the argument that Mr Mohammadi repudiated his contract, the Respondent submits that the Applicant “refused to come to work in person on numerous occasions prior to 30 October and possibly with no end date.” And it formed the view that Mr Mohammadi did not intend to honour his contract.[8]
Consideration
The issue to determine is whether the Applicant was dismissed as defined by the Act or voluntarily resigned/ repudiated his contract as submitted by the Respondent.
Section 365 of the Act deals with applications before the Commission and contains two limbs, one that there is a dismissal and secondly that the Applicant alleges that the dismissal occurred because of a contravention of general protections. Relevantly the Act at s.365 provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The term “dismissed” in s.365 of the Act is defined in s.386 of the of the Act.[9] A dismissal is to be at the initiative of the employer, or a person was forced to resign but a dismissal does not include a range of situations (e.g. employment for a specified period of time or for a specified reason). The relevant extract from s.386 provides:
“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 their employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
(emphasis in original)
The relevant provision in this matter is the application of subsection 386 (1) (a) of the Act. The Applicant submits that should I not find that the Applicant was dismissed within the meaning of the Act, that in the alternative the Applicant was forced to resign, thereby enlivening s.386(1)(b).
To make a general protections dismissal application the person must have been dismissed as defined by the Act. Before exercising its powers under s.368[10] of the Act, the Commission must be satisfied that the person was dismissed in fact.[11]
Was he dismissed?
The key principles from the legal authorities is that the dismissal arises from the employer’s action “directly and consequently” ending the employment. If the employer had not taken the action the employment would have continued.[12]
I find that the actions of the employer brought this employment to an end. The evidence shows that the Applicant was engaged by the Respondent to perform a role which the Respondent relied on. The texts refer to concerns by the Respondent that he had been inconvenienced by the Applicant’s absence when he had to attend to family requirements/ was absent from the workplace.[13]
There was no evidence of any concern regarding Mr Mohammadi’s performance or conduct, and while the Respondent now proposes in the letter of 1 November 2024 and the Form F8A – Employers Response that the job would have been made redundant, there was no evidence of steps taken to make the position redundant during the period of employment.
I do not accept that the Applicant abandoned his employment, the Respondent knew where Mr Mohammadi was, he was at home caring for his sick child and wife with suicidal tendency. Mr Golshani admitted to knowing this information including the commitment required around medical appointments which are clearly identified in the texts. The two also communicated both in person and via text.
The Respondent relies on the text of 24 September 2024 as the Applicant’s resignation, but the Applicant also sent a text on 25 September 2024 advising that he would consider the options put to him in the reply text response from the Respondent on 24 September 2024.[14] On 25 September 2024 there is no evidence of resignation. Interestingly the last text from the Respondent on 24 September asks the Applicant not to make an immediate decision but to consider the three options because he understands that the Applicant can’t come to work as “family comes first.” He also reiterates that at least he continue to work any way possible to at least 15 October and at any point they can reach an agreed decision.
The texts show continued work is performed as the two communicate about work on 26, 27, 30 September and 3 October. On 11 October Mr Mohammadi writes to Mr Golshani advising he has thought about the options and proposes to take 4 weeks off and makes a suggestion for how they ought to work the mix of WFH and time in the office after the period of 4 weeks leave. Mr Golshani does not respond until 28 October, as the four weeks of time off work was not rejected, and given the delay in responding, it is plausible the time off was approved and also in effect at that time. The reply on 28 October does not address the four weeks of leave but again states that he is not in favour of WFH (this is inconsistent with earlier texts) and then proposes an alternative i.e. WFH one day a week with a drop in wages by 30% to apply in the new year – 2025. It ends with “if you agree with my suggestion, let me know so I can prepare the contract based on the details I’ve explained to you.”[15]
There was a negotiation of the mix of WFH versus in office- this negotiation turned sour when the Applicant rejected the Respondent’s offer to reduce his pay which he states was discriminatory and unfair as no other employee suffered a reduction in pay when they WFH (there are two employees in the evidence which have been permitted to work remotely from home).[16] The negotiations came abruptly to an end on 30 October after the Applicant presented a counter proposal for consideration by the Respondent with the concluding remarks that should it not be acceptable, that option three which was reiterated ought to follow. The Respondent did not accept the proposal and sent two messages, which the Applicant says were messages of dismissal. These messages were deleted by the Respondent. A further text from the Respondent advises he will send an email about the topics discussed by weeks’ end. There was no discussion about redundancy, resignation or abandonment or repudiation at this point. It is reasonable to conclude that the parties were still in negotiation over how the combination of WFH and work in the office will be agreed, including any discussion about reduction in pay.
The reason given for the deleted two messages was unconvincing,[17] but importantly access to work resources were removed by the Respondent. This evidence was not contested. The removal from access, the last correspondence and the earlier correspondence weighs in favour of a finding that the Respondent brought the employment to an end.
Correspondence on 1 November 2024 from the Respondent’s lawyer was sent alleging resignation, abandonment[18] and repudiation. I do not accept repudiation or resignation. There is no reliable evidence that Mr Mohammadi refused to perform his job or refused to return to work indefinitely. The texts must be read in their entirety, and no reasonable objective finding can be made that the Applicant resigned or intended to bring his employment to an end.
Mr Mohammadi simply asked for the option to WFH given his extraordinary circumstances. He had the right to request this,[19] the Respondent ought to have given the request reasonable consideration. The Respondent says he did, but because of the personal pressure on him, he relied on the Applicant being in the office as he was too busy.
Much has been said of the onus on the Applicant to file a formal Flexible Working Arrangement, an observation of the texts illustrates that the two persons did not formally communicate or utilised formal processes, one person is still a new migrant and the other an employer of a small business. Formal processes in the workplace were not evident to me.
It is important to consider the facts objectively, I consider it was the action of the employer that brought the employment relationship to an end.
The Respondent dismissed the Applicant in accordance with s.386(1)(a) and therefore the Commission has jurisdiction under s.365 (a) – the first limb. The Applicant was dismissed, and he alleges he was dismissed in contravention of the general protections provisions. The Applicant relies on sections 340 and 351 in his general protections application. The Applicant provided particulars for his reliance on sections 340 and 351 and says the dismissal is the adverse action. Accordingly, the Applicant has satisfied both limbs – sections 365(a) and (b) of the Act.
Forced resignation
I need not consider the Applicant’s secondary submission that it was a forced resignation, suffice to say that, had I not found in this matter that it was dismissal by the employer, the circumstances and extraordinary pressure in which the Applicant was in gives grounds for a cautious approach if the Applicant had resigned, as it would be considered a resignation in the heat of the moment.
The principle from the authorities is that the employer’s conduct is key to effect the resignation of the employee, and such that the employee had no choice but to resign.[20] A quick acceptance by the employer of a resignation in the heat of the moment may be considered a dismissal.
Since Mohazab, a number of cases[21] have considered forced resignation with the most recent authority being the BUPA Aged Care case.[22]
Conclusion
Accordingly, the jurisdictional objection is dismissed. The Applicant’s employment was dismissed in accordance with the definition of dismissed in s.386(1)(a) and the Applicant is entitled to bring his application under s.365 of the Act.
An order[23] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
H Mohammadi, Applicant and R Tamas for the applicant.
P Golshani with M Hawkins for the respondent.
Hearing details:
2025.
Melbourne:
January 22.
[1] Digital Hearing Book (‘DHB’), 106 [1]-[2].
[2] Texts of 3 August, 24 August and 24 September 2024, DHB, 69-73.
[3] Text dated 24 September from Mr Golshani, DHB, 71, 73-74; Text dated 24 September from Mr Mohammadi confirming that despite WFH, Mr Mohammadi is committing to not let things fall behind and the intention to still meet targets set for the year, DHB, 72. On 24 September Mr Golshani further responds that he has a busy schedule and doesn’t have time to coordinate via WhatsApp and requires his presence in the office because it does not work for Mr Golshani, DHB, 73-74.
[4] On 24 September even after Mr Mohammadi expressed his inability to come into the office at that time because of his “current” circumstances (no mother, wife and child in need of care), he left the decision in the hands of Mr Golshani and signed off that he was unwell and unable to attend the meeting for that same day, DHB, 74. This is the short text relied on by the Respondent as a resignation. Mr Golshani then sent a further text not accepting the alleged “resignation” but instead put to Mr Mohammadi that he understands the situation and as a friend wants to help, then Mr Golshani further identifies the pressures on Mr Golshani due to the absence from Mr Mohammadi in the workplace and presents 3 proposed compromise options for consideration by Mr Mohammadi to move forward, DHB, 76.
[5] Text dated 25 September from Mr Mohammadi, DHB, 77.
[6] DHB 97-98 [4], 107-109.
[7] DHB, 99 [7], 108.
[8] DHB, 108-112.
[9] See Part 1-2 – Definitions in s.12 of the Fair Work Act 2009 (Cth), which refers to s.386.
[10] Dealing with a dismissal dispute other than by arbitration.
[11] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].
[12] See Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; 39 AILR 3-234.
[13] DHB, 71, 73-74, 76.
[14] See DHB, 76.
[15] DHB, 81.
[16] DHB, 83.
[17] Mr Golshani admitted to deleting the messages after speaking to his lawyer.
[18] The Applicant was on leave. The Applicant’s request for 4 weeks leave was not rejected by the Respondent at the time of making the request nor 17 days later when negotiations continued. Mr Golshani further did not understand what abandonment was- he explained it meant the Applicant refusal to agree to change the terms of the contract.
[19] See s.65 and further possible rights to parental leave under ss70, 72A, 78A of the Fair Work Act 2009.
[20] See Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; 39 AILR 3-234 at 205 (IR) per Lee, Moore and Marshall JJ and O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100-528 AIRC 496 at [19] – [23].
[21] Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279, Pawel v Advanced Precast Pty Ltd AIRC Print S5904 (12 May 2000), O’Meara v Stanley Works Pty Ltd AIRC Print PR973462 (11 August 2006) ABB Engineering Construction Pty Ltd v Doumit Print N6999, (9 December 1996) and Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154.
[22] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[2017] FWCFB 3941.
[23] PR783906.
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