Hashem Aljnabi v Buildgroup Constructions Pty Ltd T/A Buildgroup Constructions
[2018] FWC 7199
•23 NOVEMBER 2018
| [2018] FWC 7199 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hashem Aljnabi
v
Buildgroup Constructions Pty Ltd T/A Buildgroup Constructions
(U2018/8262)
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 23 NOVEMBER 2018 |
Application for an unfair dismissal remedy – minimum employment period.
[1] On 9 August 2018, Mr Hashem Aljnabi (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Buildgroup Constructions Pty Ltd T/A Buildgroup Constructions (Buildgroup)(Respondent).
[2] Mr Aljnabi submitted that he commenced employment with Buildgroup on 28 November 2016 and was dismissed from his employment on 19 July 2018 at the initiative of the employer. Mr Aljnabi submitted he was notified of his dismissal on 9 August 2018 and submits his dismissal was unfair.
[3] Buildgroup submitted that Mr Aljnabi was at all times a true casual employee who did not work on a regular and systematic basis. Further, they submitted that Mr Aljnabi was initially employed as a casual employee from November 2016 until he resigned on 12 July 2017. They submitted that he provided no further services to them until 12 September 2017 when he was engaged as an independent contractor until 10 February 2018. Subsequently, from 11 February 2018 until 19 July 2018, Mr Aljnabi was reemployed as a casual employee. Buildgroup objected to Mr Aljnabi’s application on the basis that his employment did not meet the minimum employment period required under the Act.
Procedural Background
[4] This matter was conciliated on 6 September 2018 and was unable to be resolved. Consequently, the matter was referred to me for the jurisdictional objection to be determined.
[5] A hearing was held before me on Friday 12 October 2018. I granted permission for the parties to be legally represented taking into account the complexity of the matter.
[6] Mr Aljnabi appeared and gave evidence on his own behalf. Mr Aljnabi sought to call a further witness, Hussam A Aljnabi. Buildgroup objected to each of the paragraphs within Mr Hussam Aljnabi’s witness statement on the basis that his witness evidence was irrelevant to the matters I was required to consider. Further, it was put by the Respondent’s representative that Mr Hussam Aljnabi’s evidence was subject to Deed of Release and therefore was confidential, such that in giving evidence at the hearing Mr Hussam Aljnabi may be in breach of the Agreement. The Applicant’s representative submitted that as she was not the legal representative for the witness she had advised him to seek his own legal advice on the matter. The representatives were given an opportunity to reach a consent position and were unable to do so.
[7] I heard submissions from both parties and was not satisfied that the evidence this witness could provide was relevant to the matters before me. Accordingly, the evidence was not admitted and the witness was not called to appear.
[8] Mr Shadi Abou-Assi, Director, and Ms Silvana Raydan, Company Secretary, appeared and gave evidence for Buildgroup.
Statutory Framework
[9] Section 396 of the Act requires that the following matters be decided before the merits of the application may be considered:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code);
(d) whether the dismissal was a case of genuine redundancy.”
[10] Section 382 of the Act provides that a person is protected from unfair dismissal only if they have completed the required minimum employment period.
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[11] If a person has not completed the relevant minimum employment period they are unable to make an unfair dismissal remedy application.
[12] Section 383 of the Act, which is set out below, provides different minimum employment periods depending upon whether or not the employer is a small business employer.
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
[13] Section 384 of the Act provides as follows:
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
…”
[14] Section 23 of the Act provides as follows:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
[15] There was no dispute between the parties that Buildgroup was a small business employer for the purposes of the Act. 1 Accordingly, the minimum employment period the Applicant would need to have completed in order to be protected from unfair dismissal is 12 months.
The cases presented
[16] It was not in dispute that Mr Aljnabi was employed as a casual employee between November 2016 and 12 or 13 July 2017; and from 11 February 2018 to 19 July 2018. However Buildgroup contend that Mr Aljnabi unequivocally resigned on 12 July 2018 and was subsequently reengaged as an independent contractor from 12 September 2017 to 10 February 2018.
[17] Buildgroup submitted that Mr Aljnabi at all times was employed as a true casual who did not work on a regular and systematic basis, and as such the period of employment does not count as service pursuant to s.384(2)(a) of the Act. Further, they submitted that even if the Commission considered Mr Aljnabi had worked on a regular and systematic basis, his employment still did not meet the minimum employment period.
[18] Mr Aljnabi disputed that he had resigned and submitted that he was employed by the Respondent on a regular and systematic basis with a reasonable expectation of continuing employment from December 2016 to July 2018. 2
[19] Mr Aljnabi’s evidence was that when he commenced employment with Buildgroup in December 2016 he was advised that he would be employed as a casual employee however on completion of six months’ service he would be transferred to a full-time position. His evidence was that throughout the entire period he worked for Buildgroup he worked approximately 5-6 days per week with a regular pattern and was informed of his working roster by phone, messages and at times whilst on site. 3
Did Mr Aljnabi’s employment cease in July 2017?
[20] Mr Abou-Assi gave evidence that Mr Aljnabi’s cousin was the Logistics Manager for Buildgroup. Mr Aljnabi and his cousin had a falling out due to Mr Aljnabi’s performance in early July. 4 Mr Aljnabi contacted Mr Abou-Assi stating that he no longer wished to drive the trucks and wanted to work on-site. On 7 July 2017 Mr Aljnabi sent a text message to Mr Abou-Assi requesting that Buildgroup find someone else to drive the truck and that he be provided with work onsite. Mr Aljnabi sent a further text message on 10 July 2017 in which he stated that he no longer wanted to drive the truck and that his employer would need to “tell someone else to do it. Its either I work in the job or don’t work at all”.5 Mr Aljnabi did not dispute that he sent the text messages to Mr Abou-Assi.6
[21] On 12 July 2017, Mr Aljnabi and his cousin attended a meeting with Ms Raydan and Buildgroup’s Human Resources Consultant Mr Ted Eftimiadis. 7 Mr Abou-Assi submitted that during this meeting Mr Aljnabi advised that he did not want to work as a truck driver anymore and as such would be resigning. Mr Abou-Assi’s oral evidence was that Mr Aljnabi did not want to work in the trucks anymore as he did not want to have any further confrontation with his cousin.8 His evidence was that Mr Aljnabi advised him that he wanted to work onsite, and when he told Mr Aljnabi that there was no work onsite Mr Aljnabi advised that he would leave work.9 He submitted that he and Ms Raydan attempted to convince Mr Aljnabi to stay in his role, however Mr Aljnabi advised he wanted to obtain a different job with a different company.10 His oral evidence was that Mr Aljnabi stated that if there was no more work onsite, he did not want to work.11 He arranged for Ms Raydan to send an email from his email address to Mr Aljnabi on 13 July 2017 confirming that he had resigned.12
[22] Ms Raydan gave evidence that she had attended the meeting with Mr Aljnabi on 12 July 2017 and submitted that Mr Aljnabi had resigned. Her evidence was that Mr Aljnabi had had a falling out with his cousin over his work performance as Mr Aljnabi would sometimes arrive late for work or would at times not turn up at all and this had become a point of contention with his cousin, the foreman. Ms Raydan submitted that Mr Aljnabi had resigned stating that he did not want to lose his relationship with his cousin. 13 Ms Raydan’s evidence was that they could not offer Mr Aljnabi work onsite as he spoke very little English and would not have passed the site safety induction nor would he have been able to take instructions from the site foremen who only spoke English.14 On 13 July 2017, the day after the meeting, she sent an email to Mr Aljnabi confirming that Buildgroup was accepting his resignation. She stated that she had advised Mr Aljnabi that she would send him this email during their meeting as his written English was not good and he was unable to send a written resignation himself.15
[23] Mr Abou-Assi submitted that in early September of 2017, Mr Aljnabi contacted him asking if he had any work available as he had been unable to obtain employment. Mr Abou-Assi submitted that as he did not have a lot of work available he offered Mr Aljnabi a contract to perform work if and when it was available. 16 Mr Abou-Assi’s evidence was he had spoken with Mr Aljnabi about the prospects of him working as a contractor so that he could work for other companies as there was no guarantee of work with Buildgroup.17 Mr Aljnabi was reengaged as a casual employee in February 2018 after a discussion which occurred in January 2018 in which Mr Abou-Assi agreed that he would be put back on the books as a casual employee.18
[24] Mr Aljnabi disputed the evidence given by Buildgroup’s witnesses regarding the July 2017 meeting. Mr Aljnabi submitted that on approximately 13 July 2018 he met with Mr Abou-Assi, Ms Raydan and others and queried if he would be able to work as an onsite labourer rather than a truck driver. He submitted that Mr Abou-Assi advised him that he should take one or two weeks off until onsite work became available. 19
[25] Mr Aljnabi submitted that he then received the email from Ms Raydan regarding his resignation, however he did not understand it as English is his second language. His evidence was that his wife explained to him what the email said. 20
[26] Mr Aljnabi submitted that on 14 July 2017 he contacted Mr Abou-Assi by phone to query the email. He submitted that he advised he was not resigning and had simply requested to be transferred to an onsite position. He submitted Mr Abou-Assi told him that it was possible for him to work onsite and he would soon provide him with said work. Mr Aljnabi submitted he continued to contact Mr Abou-Assi regarding work until the end of August 2017 and returned to work on 11 September 2017 onsite. 21
[27] Mr Aljnabi’s oral evidence was that he had told Mr Abou-Assi during the meeting on the 14 July 2017 that he no longer wanted to continue in his role as a truck driver. 22 His evidence was that he had told Mr Abou-Assi that he wanted to work onsite instead.23 Mr Aljnabi says he was told to take a couple of weeks off “until we find you a job and contact you.”24 Mr Aljnabi left the meeting on good terms and said it was because Mr Abou-Assi had told him he would “find me onsite job”.25
[28] Mr Aljnabi stated he provided an ABN to Buildgroup in early September and did not start physically working for them again until around 10 days later being 12 September 2017. 26
[29] Mr Abou-Assi denied that Mr Aljnabi had contacted him about the email and denied that Mr Aljnabi had advised that he was not resigning. 27
Conclusions
[30] Whilst there is a dispute about whether Mr Aljnabi had resigned or not it is clear from the evidence that Mr Aljnabi had expressed, firstly by text message and subsequently during the meeting on 13 July 2017, that he would not to continue in his role as truck driver. It was further confirmed by way of correspondence on 14 July 2017 sent from Buildgroup to Mr Aljnabi. It may be the case that Mr Aljnabi wanted to work onsite and may have expected to obtain work onsite in the future however on his own evidence no role was confirmed or offered to him.
[31] I am therefore satisfied that Mr Aljnabi’s employment as a truck driver ceased on 12 or 13 July 2018, breaking his period of continuous service with Buildgroup. Accordingly, the dispute as to whether Mr Aljnabi was an employee or independent contractor from 12 September 2017 to 10 February 2018 does not need to be determined as even if I were to find that he was employed as a casual on a regular and systematic basis from 12 September 2017 to 19 July 2018, Mr Aljnabi would still not have completed 12 months of continuous service with Buildgroup.
[32] I am satisfied that Mr Aljnabi has not met the minimum employment period and it follows that Mr Aljnabi is not a person protected from unfair dismissal. An order 28 dismissing Mr Aljnabi’s application will be issued with this decision.
COMMISSIONER
Appearances:
S. Altaee for the Applicant;
N. Kelly for the Respondent
Hearing details:
2018
12 October
Melbourne
Printed by authority of the Commonwealth Government Printer
<PR702603>
1 Transcript PN163-168
2 Exhibit A1, 9
3 Exhibit A1, 3-7
4 Transcript PN355
5 Exhibit R2
6 Exhibit R2
7 Exhibit R1, 9-11
8 Transcript PN253
9 Transcript PN408
10 Exhibit R1, 13-14
11 Transcript PN253
12 Exhibit R1, 19; Attachment SAA-1
13 Transcript PN607
14 Transcript PN566
15 Exhibit R3, 13-17
16 Exhibit R1, 20-22
17 Transcript PN418
18 Transcript PN425
19 Exhibit A1, 10-12
20 Exhibit A1, 13
21 Exhibit A1, 14-18
22 Transcript PN748-750
23 Transcript PN750
24 Transcript PN752
25 Transcript PN956
26 Transcript PN783-784
27 Transcript PN274-279
28 PR702605
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