Haneefa Kunnummel Kandy v Pepper Bite Unit Trust
[2024] FWC 1587
•18 JUNE 2024
| [2024] FWC 1587 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Haneefa Kunnummel Kandy
v
Pepper Bite Unit Trust
(U2024/698)
| COMMISSIONER SIMPSON | BRISBANE, 18 JUNE 2024 |
Application for unfair dismissal remedy – Jurisdictional Objection that the Applicant was not dismissed – Objection upheld – Application dismissed.
At the conclusion of a determinative conference on 10 June 2024 I issued a brief ex tempore decision dismissing the Applicant’s unfair dismissal application, finding that his employment was terminated at his own initiative. I advised the parties that more fulsome written reasons would follow. These are those reasons.
On 22 January 2024, Haneefa Kunnummel Kandy (the Applicant) filed a Form F2 application for unfair dismissal remedy against Pepper Bite Unit Trust (the Respondent). In its Form F3 response to the application, the Respondent raised a jurisdictional objection that the Applicant had not been dismissed.
On 29 April 2024, the matter was allocated to me.
The matter was set down for a Case Management Hearing on 7 May 2024 and I then issued Directions, listing the matter for determination on 10 June 2024 of both the jurisdictional and substantive issues. At the commencement of proceedings on 10 June an interpreter was made available to assist the Applicant. The Applicant was content to proceed by using English on the basis that he would request the assistance of the interpreter as required. Both parties consented to the matter proceeding as a determinative conference rather than a formal hearing. The only two persons who gave evidence were the Applicant and Mr Vimal Das, Managing Director, on behalf of the Respondent. They were both affirmed and gave their evidence concurrently.
Relevant legislation
Section 385 of the Fair Work Act 2009 (the Act) states:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
The jurisdictional objection is that the Applicant was not dismissed by the Respondent. Section 386(1) of the Act 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 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.
Background
It is common ground that the matter arises from the Applicant’s employment at a restaurant named ‘Pepper Bite’ (the Restaurant) located at Acacia Ridge owned by the Respondent.
The Applicant declares, and it was not contested, that he commenced employment at the restaurant on 1 December 2015.
It is also common ground that the Applicant came to be employed at the restaurant prior to the Respondent’s current management taking ownership of the Respondent entity in September 2023.
Whilst the Respondent itself submitted it had less than 15 employees, it accepted it had associated entities within the Pepper Bite group of companies and the group employed more than 15 employees causing it to fall outside the definition of a small business employer, and on that basis the Small Business Fair Dismissal Code did not apply.
Submissions and Evidence
The Applicant submitted that the Commission has jurisdiction as he was dismissed on 2 January 2024 within the meaning of s386(1)(b) of the Act.
The Applicant contended he was on annual leave from 29 November 2023 until 30 December 2023 and travelled overseas. He provided a payslip for the period from 20 November 2023 to 26 November 2023. He contended he did not receive pay for his annual leave and subsequently contacted the Respondent’s management but did not receive a response.
The Applicant contended he returned to Australia on 30 December 2023 and indicated his availability for work in the Respondent’s WhatsApp group, but that he was not subsequently rostered for work.
The Applicant provided evidence of two emails he sent on 2 January 2024 querying his return to work, and a call log record to a member of the Respondent’s management. The Applicant contended during the telephone conversation with ‘Shaji’, ‘Shaji’ stated the Respondent’s new policy would not allow for continuation of the Applicant’s employment under his previous contract, and that they could discuss new terms and conditions. The Applicant reported finding this conversation ‘very unfriendly and harsh’. In the course of the determinative conference the Applicant confirmed that it was his view that it was this telephone call which resulted in his termination of employment.
Subsequently on 18 January 2024, the Applicant met at the restaurant for a discussion. The Applicant contended the Respondent imposed ‘unacceptable changes’, including “forcing me to work another full-time chef’s work”. In his application, the Applicant stated that ‘there is no room for further discussion’ and he hence felt he had no choice but to proceed to the Commission.
The Applicant provided several screenshots of emails in support of his application. He provided an email chain between himself and the Respondent, evidencing:
An email on 24 October 2023, where the Applicant referenced having mentioned to a ‘Georgy’ about his annual leave that he intended to take from 28 November 2023 to 29 December 2023;
A subsequent email on 26 October 2023 from the Applicant to the Respondent, indicating he had only received payslips up until 1 October 2023 and therefore requested the ‘remaining’ payslips;
A subsequent email on 1 January 2024 from the Applicant to the Respondent where he noted he had not received one month’s salary for his annual leave. He contended in the email he had discussed the issue with ‘Shaji’ on the telephone but had not received a response;
A subsequent undated email from the Applicant to the Respondent contending that his weekly roster following his annual leave indicated he would work on Monday 1 January 2024 but despite informing management of his availability he had not been given a work shift. He contended that he directly contacted ‘Shaji’ who said they were not willing to employ him anymore, and that he had become ‘forced’ to ‘go with ombudsman’ to receive his entitlements.
The Applicant also provided a screenshot of an email dated 3 January 2024 from himself to the Respondent, which appeared to have been sent following the undated email described above. The text of that email of 3 January 2024 is as follows:
“As I sent an email yesterday regarding my this week shift and outstanding pay which i discussed with Shaji (one of the owners)over the phone, the same person (Shaji)called me back and explained that he was not telling me about the dismissal but some changes of terms. Therefore, I was told someone from management will contact you soon. But so far nobody contacted me and Shaji even didn’t pick up the phone either. Since I have been keep waiting three consecutive days at home to rejoin in my duty I am again waiting to get a proper response. Thanks”.
The Respondent raised a jurisdictional objection to the Applicant’s application for unfair dismissal remedy and submitted that the Applicant was not dismissed within the meaning of s.386(1)(b) of the Act.
The Respondent described the jurisdictional objection in its Form F3 and its supporting material as arising from the employee failing to respond to the Respondent’s offer to employ the Applicant with the requirement he work 38 hours per week, and the Applicant failing to respond to the offer. In its Form F3, the Respondent noted the Applicant was ‘refusing to cover 38 hours for a full-time position and claiming for a full-time salary and benefits’.
The Respondent’s response within its Form F3 to the Applicant’s contentions contended that:
the Applicant had not been dismissed from their position;
that the Respondent had ‘communicated the expectation of covering 38 hours within the standard business hours per week’;
that the Applicant had declined to comply with this requirement of the Respondent but had insisted on claiming a full-time salary and benefits ‘despite the modified terms’.
The Respondent provided a document in support of its Form F3 outlining further contentions in response to the Application as follows:
The Respondent stated that Mr Vimal Das and Mr Shajimon Mathew assumed management responsibility of the Respondent as directors on 11 September (2023);
The Respondent became aware the Applicant was not working full-time hours during business hours;
The Respondent contended it conveyed to the Applicant the Respondent’s willingness to pay a full-time salary and ‘all associated benefits’ contingent on the Applicant committing to working 38 hours during the Respondent’s business hours, and that the Applicant failed to provide a definitive response;
The Respondent held the position vacant until 28 January 2024;
The Applicant had ‘exclusively furnished emails directed to the former management team’ but had omitted emails to the new management team through a different email address, and therefore this raised concerns from the Respondent’s perspective of the Applicant’s ‘potential intent to mislead’ the Commission.
The Respondent submitted its offer for the employee to resume his responsibilities, covering 38 hours during regular business hours per week, entitling for full-time salary and benefits’ remained on foot.
The Respondent provided in evidence a series of email chains between the Applicant and the Respondent via what the Respondent states is the new management team’s email address. Included were the following:
An email from the Respondent to the Applicant on 3 January 2024 noting the Applicant’s email enquiry regarding his employment, noting that the Respondent’s concerns that the Applicant seemed to have been paid full-time pay for 38 hours a week despite his actual work hours amounting to only 5 hours per week, contending that the Respondent had not received any communication regarding the Applicant’s annual leave or return, and seeking the Applicant’s availability to meet with the management team to discuss the issues;
An email 3 hours later from the Applicant responding to the Respondent contending, inter alia, that he had corresponded with the correct email address regarding his annual leave and that he had discussed his annual leave with ‘Shaji’ and ‘Arun’ from the restaurant, and attaching a screenshot of an email chain as proof;
An email from the Applicant to the Respondent on 4 January 2024 attaching a screenshot of an airline ticket and stating he would be travelling overseas due to his mother’s deteriorating health and hoped to return on 18 January 2024;
An email from the Applicant to the Respondent on 14 January 2024 confirming he had booked a return flight to Australia and would be available from 18 January 2024; and
An email from the Applicant to the Respondent on the morning of 18 January 2024 indicating he was available for work and seeking the Respondent respond.
On the evening of 18 January 2024, the Respondent sent an email to the Applicant as follows:
“I appreciate your time during our meeting today. Following our discussion, there was a request for you to return to a full-time work schedule of 38 hours per week. The management has observed that, since the introduction of the clock-in system under the new management, you have been working only 5 hours per week, which is not suitable for us.
In order to continue your employment at Pepperbite Restaurant, Acacia Ridge, as a full-time staff member with all associated entitlements and rewards, it is necessary for you to commit to working the standard 38 hours per week. Kindly confirm your willingness to comply with this requirement within the next 7 days. Upon receipt of your confirmation, we will adjust the roster accordingly, effective from the next rostering cycle.
Alternatively, if you find it challenging to fulfil the full-time commitment, please inform us within the next 7 days. This will enable us to process your final paycheck in a timely manner.”
I asked during the determinative conference if there was a written contract between the parties. Mr Das said he had never seen a copy of a written contract. The Applicant subsequently provided a copy of a written contract dated 27 April 2021.
The Applicant said he was originally offered his job by ‘Georgy’ back in 2015 who Mr Das confirmed was a previous director. Mr Das said he did not know when he became a director whether the Applicant was a full time employee or a casual. Mr Das said he became aware of an incident where the Applicant came to the Acacia Ridge Store at 7am or 8am in the morning to cook the Biriyani, and left the Store to do Uber Driving and left the Biriyani cooking in the kitchen and there was a fire. The Applicant agreed he had a separate job with Uber, however he said the incident referred to happened 4 or 5 years ago and he hadn’t started with Uber at that time.
The Applicant said it was true that he went to work in the early morning alone however there were a lot of dishes that need to be prepared. The Applicant said it was not only him, and the employer wanted him to do that, and the fire was an accident. The Applicant said he was originally sponsored to come and work for the Respondent, and initially worked up to 90 hours a week and he agreed to do that to help the business improve. The Applicant said 3 or 4 years ago he became a permanent resident, and the Respondent employed another chef to share the work with him, and back then the management told him just to prepare the Biriyani whatever time he could come and prepare it as it was his specialised dish.
The Applicant said it would take four of five hours to prepare the Biriyani and he would also work one or two night shifts a week as well. The Applicant said sometimes he would work more than 38 hours in a week but sometimes less than 38 hours in a week. The Applicant said he would work 6am to 11am Monday to Saturday, and 4.30pm to 9.30pm or 10pm on the evening shift. The Applicant said he gradually reduced to one night shift per week. On the Applicant’s evidence, at one evening shift per week he would be working approximately 35 to 35.5 hours per week.
Mr Das said the Applicant would come in the morning to make the Biriyani and that would take a maximum of 3 to 4 hours, and he only worked one evening shift per week. On Mr Das’s evidence he maintained the Applicant was working approximately 30 hours per week for 38 hours pay. Mr Das said when he came to take over the business the Respondent had a debt to the Australian Taxation Office of $300,000. Mr Das said he checked everyone was being paid unnecessarily and straight away he implemented a new system where all staff were required to clock in at the beginning of shift and clock out on finishing. Mr Das said this new system was implemented in November 2023, but he could not remember the exact date.
Mr Das said after a month when he checked everything, he realised the Applicant was not coming to work during business hours and was working at times other than the business hours, just cooking the Biriyani and leaving. Mr Das said the Applicant was not clocking in and clocking out. Mr Das said he had a store in Melbourne, Brisbane and Sydney, and he told his manager that because this was the new system everyone had to be in the clock in and clock out system. Mr Das said everyone is on that system now. Mr Das said his manager told the Applicant about the new clock in and clock off system. The Applicant said he did not know about the new system, and no one told him or showed him about it. The Brisbane Manager was ‘Najeeb’, and the Applicant said ‘Najeeb’ had not told him about the system before he left to go to India on 29 November 2023.
A 24 October email clearly indicates that the Applicant was advising the Respondent by sending an email to ‘Georgy’, the previous Director, of his intention to take Annual Leave from 28 November to 29 December 2024. Mr Das said at the time of 24 October 2023 when the Applicant sent the email to ‘Georgy’, that person had already ceased to be a Director or have any involvement with the Respondent.
The Applicant said on 5 November he had a discussion at the Acacia Ridge Store with the Director ‘Shaji’ and Mr Das about this email and the Annual Leave. Mr Das said this was a casual briefing. The Applicant said he was asked when he would come back, and the Applicant said he would come back in a month. Mr Das said that they discussed the business and how they could keep it going as it had kept going down and the debt was too high, and if they wanted to maintain their jobs he needed to earn the income and this was explained. Mr Das said he was aware that the Applicant was going on leave as ‘Georgy’ had forwarded the email the Applicant sent on 24 October to him.
Mr Das said he had no problem with paying the Applicant annual leave, but the Applicant is saying he dismissed the Applicant when he didn’t. Mr Das said in December 2023 he checked and found staff income was too high and he checked with his manager and he was told that staff were working less than 38 hours and the pay was very uneven. Mr Das said he told his manager to tell the staff everyone needed to work their 38 hours. Mr Das said the business hours were 11.30am to 2.30pm and 5.30pm to 9.30pm when the shop was open and those were the hours Mr Das wanted the Applicant to work when he was available.
I asked Mr Das about the Applicant needing to prepare the Biryani and he said during the lunch time between 11.30am and 2.30pm the maximum sale is $300 and he had enough staff at that time. Mr Das’s evidence was to the effect that he just wanted the Applicant to work his 38 hours per week during the times when the shop was open. He said he did not want the Applicant to be working in the shop alone outside those hours for safety reasons. The Applicant said he was ready to work from 31 December 2023 after returning from India. The Applicant sent a text message to the Respondent on 31 December 2023 advising he was available to recommence working.
On Monday 1 January 2024 at 2:20pm the Applicant sent the following email to the Respondent:
“Dear proper bite,
The reason for this email is as i requested and granted the annual paid leave but I haven’t received my one month annual salary, even though I discussed through the phone with shaji, i haven’t received a proper response. As such i kindly request you to contact me in this regard as early as possible.
Thanks and regards.”
On 2 January 2024 at 10:18am the Applicant sent another email to the Respondent as follows:
“Dear Pepper bite,
According to weekly roster after my annual leave I have to join in my shift on 1/01/2024 Monday and although I informed my availability to the management they haven’t put me in the shift either. As such I directly contacted Shaji (one of the owners) and he said they are not willing to employed me any more. As such I have become forced to go with ombudsman in order to receive my entitlements.
Thanks”
The Applicant said that at 11.22am there was a telephone call between the Applicant and ‘Shaji’. The Applicant said another Chef had been fired and his evidence was to the effect that ‘Shaji’ said to him if he wanted to continue work, he would have to work the shop hours and also do the work of the other Chef as well as his own work at the Acacia Ridge shop. The Applicant said ‘Shaji’ wanted him to continue to work for the same wage and he also said his wage hadn’t increased since 2015.
I asked the Applicant how the conversation ended and his evidence was to the effect that he said to ‘Shaji’ “Ok fine” and that he didn’t have any other option and he would complain to the Ombudsman. The Applicant gave evidence that after he sent the email message set out above, ‘Shaji’ communicated to him that the Respondent did not intend to fire him.
On 3 January 2024 at 10.01am the Applicant sent an email to the Respondent as follows:
“As I sent an email yesterday regarding my this week shift and outstanding pay which I discussed with Shaji (one of the owners) over the phone, the same person (Shaji) called me back and explained that he was not telling me about the dismissal but some changes of terms. Therefore, I was told someone from management will contact you soon. But so far nobody contacted me and Shaji even didn’t pick up the phone either. Since I have been keep waiting three consecutive days at home to rejoin my duty I am again waiting to get a proper response. Thanks”
At 10.23am on 3 January 2023 the Applicant received the following email from the Respondent:
“Hi Haneefa,
Thank you for reaching out via email to Pepperbite regarding your employment. Since the change in restaurant management last October, there have been observations made concerning your scheduled full-time pay of 38 hours per week, while your actual work hours amount to only 5 per week. This situation is causing inconvenience for our operations.
Additionally, in reference to the annual leave you mentioned in your email, none of the members of our new management team have received formal or informal communication regarding annual leave or return dates. In light of this matter, we would like to schedule a meeting with you to discuss these issues further.
Could you kindly provide your availability for a meeting? We will coordinate with our management team to arrange a suitable time that aligns with both your schedule and theirs. Your prompt response regarding your availability would be greatly appreciated.
Kind Regards
KAYAL HR TEAM”
In the course of the determinative conference I queried why the email referred to the Applicant only working 5 hours per week. Mr Das explained that the reference to the 5 hours was a reference to the number of hours the Applicant was working when the shop was actually open, not a reference to the hours the Applicant worked per week. Mr Das repeated that the Applicant was told he was only required to work during business hours.
At 12.23pm on 3 January 2024 the Applicant sent an email in response as follows:
“Dear new management team,
As I have been 9 years part of Pepper bite,
The very first time now I have received a written communication from you that you have joined Pepper bite team since October.Otherwise I have sent emails to the Pepper bite mail address which you mentioned now that you have received my mail regarding my annual leave and etc..
In addition to that, I am attaching the screen shots and proof of my email below regarding the annual leave which sent on 24th October 2023. Hence I have discussed with Shaji and arun at the restaurant in detail.
And I can see in your email that I am working only 5 hours in a week shift!
Then why did you keep employed such a staff over the period of 9 years? and until the December last pay slip 2023?I know you have to make stories to justify to expel me but please don't go this way.
If you don't want me to keep in your team please go according to the Australian workplace laws rather than making stories.
From a human perspective you should know something that I have travelled india with my family together and they will only return after two weeks and I spent only one month, personally I returned early because of work commitments. Hence my mother in law in serious health issues and my brother's daughter marriage is this week and another brother marriage also fixed (he is also the staff of Pepper bite) but here I am still waiting 4 days in the room to get my work schedule.
I am free to talk anytime. Better early possible. Thanks”
At 8.02am on 4 January 2024 the Applicant sent an email to the Respondent as follows:
“Dear Pepperbite,
As I mentioned in my early email my mother's health condition has worsened.
As such I am going home for a very short period as an emergency.
I hope can come back on 18th January.
Thanks”
The Applicant attached a copy of the plane ticket he had purchased.
I put it to the Applicant that it appeared from this evidence that the employment relationship was still alive despite a dispute about outstanding leave and not being rostered on.
At 5.11am on 14 January the Applicant sent an email to the Respondent as follows:
“Dear Pepper bite team,
I have booked return ticket to Australia and would be available from 18th of this month. Thanks and regards”
The Applicant returned to Australia on 18 January 2024. He sent an email to the Respondent as follows at 8:49am on 18 January 2024:
“Dear Pepper bite,
I am available for work, please let me know if you would like to take me in for work. thank you”
The Applicant said he went straight from the airport to the Respondent’s premises and he had a meeting with ‘Shaji’. The Applicant said ‘Shaji’ told the same story, and he said to ‘Shaji’ he had worked hard for the Respondent, and he is now 50 years old and he cannot take all that work on his shoulders as the Respondent had fired the other chef and everything would have to be done in that 38 hours.
At 9:09pm on the evening of January 18 the Respondent sent an email to the Applicant as follows:
“Hi Haneefa,
I appreciate your time during our meeting today. Following our discussion, there was a request for you to return to a full-time work schedule of 38 hours per week. The management has observed that, since the introduction of the clockin system under the new management, you have been working only 5 hours per week, which is not suitable for us.
In order to continue your employment at Pepperbite Restaurant, Acacia Ridge, as a full-time staff member with all associated entitlements and rewards, it is necessary for you to commit to working the standard 38 hours per week. Kindly confirm your willingness to comply with this requirement within the next 7 days. Upon receipt of your confirmation, we will adjust the roster accordingly, effective from the next rostering cycle.
Alternatively, if you find it challenging to fulfill the full-time commitment, please inform us within the next 7 days. This will enable us to process your final paycheck in a timely manner.
Best regards,
HR Team”
The following morning at 9:29am on Friday 19 January 2024 the Applicant sent an email to the Respondent as follows:
“Dear Pepperbite,
I appreciated the way you appreciated me regarding yesterday's meeting.
Hence, I would like to let you know that I am more than happy to work 38 hours, as I have worked more than 70 hours per week volunteerly in the beginning of Pepper bite.
At the same time, I would like kindly ask you something as we live in a world every living expenses are going up.
Firstly, is that the same salary (without increase)you would pay since my first pay slip in 2015 (1,057.69 per week) ?
Secondly, I would like to know about my tasks, because there were two cooks including me to prepare south Indian dishes until recently but you fired one off them, as such I have concern about my tasks and hope you would clarify
Nevertheless, again I can see in your email you repeated the same vague argument that I have been working only 5 hours a week and this time you make the new story that the newly introduced clock -in system which I haven't seen or anyone from your new management team member showed me until I left for holiday, besides by telling such allegations will make relationships more unfriendly as we have to see and work everyday together.
Finally, I repeatedly say that I am always happy to work in Pepper bite as long as my work rights are not denied.
I am waiting to hear from you as early as possible. Thanks
On Sunday 21 January 2024 at 3:06pm the Respondent sent an email to the Applicant as follows:
“ Hi Haneefa,
We appreciate your response and would like to express our gratitude for your dedicated service as a South Indian chef at PepperBite. As management undergoes changes, it is natural for adjustments to be made in various aspects of our operations. Our intention is not to engage in any argument with you regarding this matter.
Before you resume your duties, we aim to provide you with a comprehensive overview of your roles and responsibilities. This is in consideration of our observation that the output of your work, relative to the full-time position you hold, could be optimized. It's worth noting that the previous management may have compensated certain tasks, on a contractual basis. Following a thorough analysis, the current management has determined that such arrangements are not economically viable for us.
As part of the new guidelines, we expect the South Indian chef working full-time at PepperBite to fulfill tasks within a standard 38-hour workweek, between the operating hours of 11:30 am to 2:30 pm and 5:00 pm to 9:30 pm. These decisions have been made based on careful analysis, and we believe that ample time exists within the restaurant's operational hours to accomplish all assigned tasks. As a South Indian chef staff member, your responsibility entails preparing all the required items listed on the menu according to customer requests for both dine-in and takeaway orders within the allocated full-time staff hours instead of contract basis.
In our pursuit of operational efficiency, we are seeking a staff member who can fulfill duties and responsibilities. If you are willing to adhere to these conditions and continue with PepperBite, we are more happy to include you in the upcoming roster. Alternatively, if you find these terms unsuitable, we may need to consider hiring someone who is willing and eligible to work under these conditions.
We value your contributions and respect your decision in this matter. Kindly confirm your decision within the next six days to ensure the seamless functioning of the restaurant.
Sincerely,HR Team”
At 12:04am on Monday 22 January 2024 the Applicant sent an email in response as follows:
“Dear Pepperbite, thanks for your email.
And atleast this time you agreed in your email that there is a mutual agreement between management and me.(Instead of 5 hours in a week,)
But I don't see anything regarding my pay rise or entitlements since 2015. Isn't that bother you?
So from your analysis, to reinstate my position I have to work with preparing all south Indian dishes and serving in 38
hours right?It means my full time work and also already fired Eldhose work right?”
The Commission case file records that the Applicant filed an Unfair Dismissal Application at 7.55am on 22 January 2024 Queensland time.
At 2.32pm on Monday 22 January the Respondent sent an email to the Applicant as follows:
“Hi Haneefa,
Thank you for your email. Thanks for admitting that you spent more than 5 hours a week on the restaurant premises. As previously communicated in our emails, we clearly notified that you were seen only for 5 hours at work on scheduled business hours at Pepperbite Restaurant between 11:30 am to 2:30 pm and 5 pm to 9:30 pm. Our aim is to prevent unauthorized access to the premises outside of business hours, especially when no one is present.
Previous management has informed us that you accessed the restaurant premises outside of business hours, and there are reports that you were involved in a kitchen fire incident, knowingly or unknowingly, leaving the premises afterwards (evidence and videos are available). We cannot allow such incidents to occur in the future due to safety concerns.
In accordance with health and safety protocols, unauthorized access to the premises outside of business hours without authorization is not permitted. Instead of engaging in arguments, we would appreciate your decision on this matter. We are prepared to offer you an Australian standard salary and benefits as a full-time staff member, working 38 hours during our business hours.
If you are not inclined to proceed, please advise us on how to proceed with your final settlement. Additionally, we have noticed that you still have the PepperBite Restaurant door key in your possession, which has not been returned to the manager or any member of the management team during your leave or absence from work. Regardless of your decision, we kindly request that you promptly return the key to the manager or any authorized person.
Sincerely,
HR Team”
At 9:08pm on Monday 22 January 2024 the Applicant sent an email to the Respondent as follows:
“Yes I have the shop key and it was given by the owner ,because it's been with me since 2015 and expected to join in after my holiday, but you dismissed me before that.so don't worry I will handed over that one today or tomorrow. Please tell me to whom I handed it to.
In addition, it's an Indian style that after dismissed a staff maximum try to retaliate against him, hence will forget everything he has contributed to the business.
Indeed, let the time will tell the truth”
At 4:33pm on Tuesday 23 January 2024 the Respondent sent an email to the Applicant as follows:
“Hi Haneefa,
We would like to discuss an important matter in a straightforward manner. Your substantial tenure with Pepperbite is duly acknowledged and appreciated.
As communicated earlier, it is imperative to adhere to the standard Australian working hours at Pepperbite (38 hours per week during business hours) to be eligible for a full-time salary and associated benefits. It is crucial to note that there is no termination from Pepperbite at this juncture.
We are seeking your confirmation regarding the continuation of your role as a South Indian chef, with a commitment to the specified 38 hours per week and the utilization of all benefits and entitlements associated with a full-time staff member. Additionally, I kindly request you to facilitate the handover of keys to either Najeeb or Shaji at your earliest convenience.
Best regards
HR Team”
At 6:14pm on Wednesday 24 January 2024 the Applicant sent an email to the Respondent as follows:
“Yes, I handed over the key to Shaji”
The Applicant said from 24 January he waited for the conciliation before the Commission.
The determinative conference was briefly adjourned so that I could examine the employment contract that the Applicant had provided during the conference. The employment contract was dated 7 April 2021 however was unsigned. It stated it was between the Unit Trust for Pepper Bite unit Trust T/A Pepper Bite and Haneefa Kunnummel Kandy.
The contract states under the heading “Term of Employment” as follows:
“Your conditions of employment are set out primarily in the Hospitality Industry (General) Award 2010.”
Clause 2 provides for a base salary of $55,000 and superannuation at 9.5% of base salary.
The contract at clause 2 states the initial length/term of the contract is two years and can be renewed by way of mutual agreement on terms agreeable to both parties prior to the expiry of the contract.
The contract includes at clause 3 that the employee is engaged to work 38 hours per week, with the schedule to be determined by the employer. Clause 4 provides for annual leave, clause 5 to sick leave and other entitlements consistent with being a full time employee.
CONCLUSION
The Applicant clearly expressed concerns about the workload that would be required of him if he returned to working for the Respondent as it proposed. Mr Das could not give evidence in relation to the contract produced by the Applicant. The Applicant gave evidence that Georgy Vadath made the offer of the contract to him on behalf of the Respondent, and he accepted it. It seems in all likelihood the Applicant made an agreement to be bound by the terms of the contract with the Respondent in 2021. It can also reasonably be inferred that it appears by the conduct of the parties on the available evidence that the parties agreed to the continuation of the contract past its initial 2 year period.
Clause 3 of the contract says the schedule of hours is to be determined by the employer, leaving the hours of work to be set at the discretion of the Respondent, (subject to the terms of the Award).
Mr Das gave evidence and I accept that the Acacia Ridge shop was running at a significant loss and a decision was made by management that the Applicant was to perform his hours of work when the shop was open between 11.30am to 2.30pm, and 5.30pm and 9.30pm. The Respondent was entitled to make such a decision and directing the Applicant to perform his hours of work at those times was lawful and reasonable.
It is clear from the evidence concerning the telephone conversation between the Applicant and ‘Shaji’ on 2 January 2024 that they had a disagreement. While the Applicant had serious concerns about the changes, I do not accept that the outcome of the conversation, in the context of all of the evidence (including subsequent correspondence between the parties, and the Applicant advising the Respondent he was returning to India for personal reasons and would be available to work when he returned), that the telephone conversation had the effect of bringing the employment relationship to an end at the initiative of either party.
The employment relationship remained alive however a dispute existed between the parties about the basis of the Applicant’s future working arrangements.
The employment contract prior to Mr Das becoming involved in the business, did not include any specific agreement over when hours would be worked and instead gave the employer discretion in relation to that matter. The management decision as explained by Mr Das was that a decision was made that the Respondent wanted the Applicant to work his 38 hours at times the shop was trading and not from early in the day as had previously been the case.
The Applicant also was concerned about his potential future workload given another chef had left the employment of the Respondent. Ultimately the Applicant’s role was to fulfil his contractual commitment to perform work for the hours he was contracted to work. The conditions the Respondent was asking the Applicant to agree to did not have the effect of terminating the Applicant’s employment if he did not accept those conditions. The conditions were lawful and reasonable. The question of whether the Applicant could complete the tasks he was asked to perform within the time available was a matter for the future and would only become clear if he returned to work and workload issues subsequently arose.
The Applicant took further time away from 4 January 2024 and returned on 18 January 2024. The correspondence between the parties indicates that the Respondent offered ongoing employment on his return on the basis he agreed to work the hours as proposed. I have concluded that the effect of the Applicant not responding to the Respondent’s requests to confirm he would work at the times the shop was open, and instead filing an application for unfair dismissal remedy, had the effect of bringing the employment relationship to an end at the initiative of the Applicant.
As I have reached that conclusion there has been no dismissal within the meaning of section 386 of the FW Act and on that basis the Commission has no jurisdiction to proceed to deal with the matter, and on that basis the application is dismissed.
On a separate issue it appears that the Applicant may still be owed some outstanding accrued entitlements and potentially also for the days he was should have been rostered to work and was not. If he has not been paid all of his statutory entitlements appropriately that will need to be paid.
COMMISSIONER
Appearances:
Mr Haneefa Kunnummel Kandy on his own behalf.
Mr Vimal Das (Managing Director) on behalf of the Respondent.
Hearing details:
2024
Brisbane
10 June.
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