Ismail Fahmi v Bright Balustrading Pty Ltd
[2021] FWC 6667
•22 DECEMBER 2021
| [2021] FWC 6667 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Ismail Fahmi
v
Bright Balustrading Pty Ltd
(C2021/4289)
COMMISSIONER P RYAN | SYDNEY, 22 DECEMBER 2021 |
Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - application dismissed
[1] This decision concerns an application by Mr Ismail Fahmi (Fahmi/the Applicant) to deal with a general protections dispute involving dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). By the application, Mr Fahmi alleges that his employment with Bright Balustrading Pty Ltd (the Respondent) was terminated on 5 July 2021 in contravention of Part 3-1 of the Act.
[2] In its Form F8A – Response to general protections application, the Respondent raised a jurisdictional objection to the application on the grounds that Mr Fahmi was not dismissed.
[3] The Commission has jurisdiction to entertain an application to deal with a general protections dispute involving dismissal pursuant to s.365, only if the Applicant has been dismissed.1
[4] Accordingly, this matter was listed for hearing of the jurisdictional objection on 28 and 29 September 2021.
[5] In accordance with directions issued, both parties were given the opportunity to file any witness statements, documentary material and an outline of submissions. The materials filed by the parties were consolidated into a “Digital Hearing Book” (DHB) for reference throughout hearing.
[6] The following persons gave evidence at the hearing:
• The Applicant;
• Mr Faizan Ahmed, company secretary of the Respondent;
• Mr Michael White, administration manager employed by the Respondent;
• Ms Belinda Grzetic, accounts clerk employed by the Respondent;
• Mr Abu Sayed, fencing/balustrade installer employed by the Respondent;
• Mr Kobir Ahamad, fencing/balustrade installer employed by the Respondent; and
• Mr Sean Whitten, rehabilitation consultant employed by WorkFocus Australia.
[7] For the reasons that follow, I have determined that Mr Fahmi was not dismissed from his employment. Accordingly, this application is dismissed.
Applicant’s Evidence
[8] The Applicant gave evidence that he commenced working for the Respondent in late January on a full-time basis after responding to an advertisement on the website ‘Gumtree’. 2
[9] The Applicant suffered a work-related injury on 28 April 2021 and was unfit for duty from that date until 28 June 2021. 3
[10] The Applicant stated that he did not work on 28 or 29 June 2021 because the person allocating the work “forgot” to assign him duties. 4
[11] The Applicant states his employment was terminated following an incident at a work site on 3 July 2021. In relation to the events of 3 July 2021, the Applicant’s evidence can be summarised as follows:
• That he attended work from 8:00am until 1:30pm; 5
• That at approximately 10:00am he requested to go home early due to an aggravation of his work-related injury, which was subject to a workers compensation claim; 6
• That he asked Mr Sayed what time they would be finished and Mr Sayed said “7:00pm”; 7 and
• That he said he was leaving at 1:30pm and in response to that Mr Sayed “fired” him. 8
[12] The Applicant stated that he wasn’t allocated work on Monday 5 July 2021 or Tuesday 6 July 2021. 9
[13] On 8 July 2021, the Applicant states he telephoned Mr Ahmed at 10:43am, but there was no answer. He then tried to call Mr Ahmed at 10:52am, but again there was no answer. 10
[14] At 1.57pm, the Applicant states he telephoned Mr White to query why he wasn’t receiving work. The Applicant states Mr White was dismissive and referred him to Mr Ahmed. 11
[15] The Applicant states Mr Ahmed returned his telephone call at 3:42pm and advised him that he had to call Mr Sayed to “confirm his dismissal”. 12
[16] The Applicant states he then telephoned Mr Sayed who confirmed the Applicant was “fired that day”. That day being a reference to 3 July 2021. 13
[17] The Applicant states he then spoke with Mr Ahmed at 4.22pm and after advising Mr Ahmed of his discussion with Mr Sayed, Mr Ahmed said “okay you stopped working”. 14
[18] The Applicant accepts he received a telephone call from Mr White on 15 July 2021, but did not provide any detail as to what was said, only to question Mr White’s motive in making the call. 15
Respondent’s Evidence
Mr Michael White
[19] Mr White is the administration manager employed by the Respondent. His duties include payroll and return to work coordination. 16
[20] Mr White stated that when processing payroll on 8 July 2021, he became aware that the Applicant had not attended work from 5-7 July 2021. 17
[21] Later that day Mr White received a telephone call from the Applicant, during which the Applicant queried whether he would be paid in full for the previous week. Mr White confirmed that subject to the presentation of a medical certificate, the Applicant would be paid in accordance with the Respondent’s return to work plan. 18
[22] Mr White stated that at no time during that telephone call did the Applicant advise Mr White that his employment had been terminated or complain that he wasn’t allocated work earlier that week. 19
[23] On 13 July 2021, Mr White received an updated return to work plan for the Applicant from Mr Whitten. 20
[24] On 15 July 2021, following further non-attendance by the Applicant, and after a number of attempts to contact the Applicant, Mr White and the Applicant had telephone discussion during which:
• The Applicant advised Mr White that in relation to 3 July, he had “no reason for his early departure and that his decision to leave work early had led to a dispute with one of his fellow workers”; 21 and
• Mr White directed the Applicant to attend work the next morning, 16 July 2021 at 7:00am. 22
[25] Mr White stated that the only persons with the authority to terminate the employment of the Respondent’s employees are Mr Faizan Ahmed and Mr Moqbul Ahmed. 23
Mr Faizan Ahmed
[26] Mr Ahmed is the company secretary of the Respondent. 24
[27] Mr Ahmed stated that he employed the Applicant as a casual employee on 25 January 2021. 25
[28] Mr Ahmed stated that on the morning of 8 July 2021, the Applicant telephoned him and advised him that “he didn’t come to work for the past few days because he was feeling unwell” 26 and that he (the Applicant) no longer wanted to work with Mr Sayed. Mr Ahmed advised the Applicant to call Mr Sayed and make amends and requested the Applicant provide a medical certificate.27
[29] Mr Ahmed then telephoned Mr Sayed and asked him if he had a problem with the Applicant. Mr Sayed responded that he did not. Mr Ahmed then advised that the Applicant would be calling him to smooth things over. 28
[30] Later in the afternoon, Mr Ahmed telephoned the Applicant and confirmed that everything was “okay” between the Applicant and Mr Sayed. The Applicant confirmed he would bring a medical certificate to the work the next day. 29
[31] Mr Ahmed denies he terminated the Applicant’s employment. 30
Ms Belinda Grzetic
[32] Ms Grzetic is an accounts clerk employed by the Respondent. 31
[33] Ms. Grzetic gave evidence that she was working next to Mr Ahmed in the Respondent’s office on 8 July 2021, when Mr Ahmed was talking on the telephone to the Applicant. 32
[34] Ms Grzetic gave evidence that during this telephone call:
• That Mr Ahmed did not advise the Applicant that his employment was terminated or that he no longer worked for the Respondent; and
• That Mr Ahmed requested the Applicant to call Mr Sayed and apologise for leaving work early on the previous Saturday. 33
Mr Abu Sayed
[35] Mr Sayed is a fencing/balustrade installer employed by the Respondent and was on site at Parramatta on 3 July 2021. 34
[36] In relation to the events of 3 July 2021, Mr Sayed’s evidence can be summarised as follows:
• The Applicant was complaining about working on Saturday and stated that it was against the law; 35
• That Applicant asked him what time they would be finished and he responded “maybe four or five o’clock”; 36
• That at around lunch time the Applicant advised Mr Sayed he was “leaving” and that Mr Sayed responded that if he left, he (the Applicant) “will not work in his team anymore” 37
• After the Applicant left the site, Mr Sayed telephoned Amit (operations) and advised him of what had occurred, and requested that the Applicant be assigned to a different work team in the future. 38
[37] On 8 July 2021 Mr Sayed received a telephone call from the Applicant, during which the Applicant apologised for the events of 3 July 2021. 39
[38] Mr Sayed disputed that he terminated the Applicant’s employment during this telephone call or at any other time and stated that he does not have the authority to terminate the employment of the Respondent’s employees. 40
Mr Kobir Ahamad
[39] Mr Ahamad is a fencing/balustrade installer employed by the Respondent.
[40] In relation to the events of 3 July 2021, Mr Ahamad’s evidence can be summarised as follows:
• The team arrived on-site in Parramatta at approximately 7:00am; 41
• The Applicant arrived at the site at approximately 9:00am; 42
• At approximately 12:00pm, the Applicant advised Mr Ahamad and the other workers onsite that he would be leaving as “we are not supposed to work after 12pm in Australia”; 43 and
• That Mr Sayed advised the Applicant if he left the site, he wouldn’t work with Mr Sayed’s team again. 44
Sean Whitten
[41] Mr Whitten’s attendance was pursuant to an Order to attend issued by the Commission. 45
[42] Mr Whitten is the rehabilitation consultant with WorkFocus Australia and was the Applicant’s rehabilitation consultant in relation to his worker’s compensation matter.
[43] In summary, Mr Whitten gave the following evidence:
• That he would speak with the Applicant weekly as part of the workers compensation matter; 46
• That the Applicant told him there was a dispute about hours and he walked off site; 47 and
• At no stage did the Applicant or any representative of the Respondent advise him that the Applicant’s employment had ceased by termination, resignation or otherwise. 48
Applicant’s Submission
[44] In summary, the Applicant submits he was dismissed from his employment on 3 July 2021 when he complained about the aggravation of his work-related injury. The Applicant further submitted this was confirmed during his telephone discussions with Mr Ahmed and Mr Sayed on 8 July 2021.
[45] The Applicant contends that the Respondent’s failure to allocate work to the Applicant on 5-7 July supports a conclusion that his employment was terminated on 3 July 2021 by Mr Sayed.
[46] The Applicant submitted that he contemporaneously communicated his dismissal to Mr Whitten on 8 July 2021.
[47] The Applicant submitted in the alternative that he resigned on 5 July 2021 and that his resignation was because of conduct by the Respondent in requiring him to work when injured on 3 July 2021.
Respondent’s Submissions
[48] In summary, the Respondent submitted that there was no dismissal, and the Applicant’s differing position as to which day he says he was terminated supports the conclusion that he was not terminated by the Respondent.
Legislation
[49] Section 365 of the Act provides as follows:
“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.”
[50] The meaning of “dismissed” is set out at s.386 of the Act as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(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.”
Consideration
[51] The concept of termination of employment at the initiative of the employer has been dealt with in many cases.
[52] A succinct summary of the relevant authorities was set out by Hunt C in Whirisky v DivaT Home Care 49as follows:
[75] In accordance with Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab), a termination is at the employer’s initiative when:
• the employer’s action ‘directly and consequentially’ results in the termination of employment, and
• had the employer not taken this action, the employee would have remained employed.
[76] In O’Meara v Stanley Works Pty Ltd (O’Meara), a Full Bench of the Australian Industrial Relations Commission, as this Commission then was, considered Mohazab and other case law considering when a termination will have been at the initiative of the employer, and concluded that there must be:
“[23] …some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.”
[77] While the question of whether an act of the employer results directly or consequentially in the termination of employment is an important consideration, all of the circumstances must be examined including the conduct of both the employer and employee.
(footnotes omitted)
[53] It is clear that the determination of this matter will turn on which evidence is preferred.
[54] While I have had regard to all of the evidence, materials filed and the submissions of the parties, as will be borne out in the reasons that follow, where the evidence conflicts, I prefer the evidence of the Respondent’s witnesses to that of the Applicant.
Status of Applicant’s Employment
[55] There was a dispute as to the status of the Applicant’s employment. This is relevant to the question of whether the failure by the Respondent to allocate work to the Applicant on 5-7 July 2021 constituted a dismissal.
[56] The Applicant maintains he was employed on a full-time basis. However, the evidence does not support this contention. Admitted into evidence were the Applicant’s payslips for the period of 25 January 2021 until 28 April 2021, when the Applicant suffered a work-related injury. 50 The payslips identify that the Applicant worked 38 hours (or more) per week for the first 6 weeks. Thereafter, the Applicant worked varying hours each week ranging from 16 to 32 hours.
[57] From, 28 April 2021 until 28 June 2021 the Applicant was unfit for duties. The Applicant then worked on 30 June, 1 July, 2 July and 3 July.
[58] I find that the Applicant was employed as a casual employee.
Was the Applicant dismissed on 3 July 2021?
[59] I do not accept the Applicant’s contention that Mr Sayed terminated his employment on 3 July 2021 for the following reasons.
[60] First, the Respondent’s witnesses were clear about who had the authority to terminate the employment of the Respondent’s employees. In particular, Mr Sayed was explicit in his evidence that he knew he did not have the authority to terminate the Applicant’s employment and did not terminate the Applicant’s employment.
[61] Second, I accept the evidence of Mr Sayed and Mr Ahamad that the Applicant expressed dissatisfaction with working on a Saturday before departing the work site prior to the completion of duties on 3 July 2021.
[62] This version of events is corroborated by the evidence of Mr Whitten that the Applicant explained to him there was a dispute about working hours and the Applicant walked off site. This is also consistent with Mr White’s evidence of what the Applicant stated to him on 15 July 2021.
[63] Third, I accept Mr White’s unchallenged evidence that he directed the Applicant to attend work on 16 July 2021. This is inconsistent with the Respondent having terminated the Applicant’s employment on 3 July 2021.
Was the Applicant dismissed on 8 July 2021?
[64] I do not accept the Applicant’s contention that his employment was terminated by Mr Ahmed or Mr Sayed on 8 July 2021 for the following reasons.
[65] First, the Applicant’s version of events about the timing and order of telephone discussions with Mr Ahmed, Mr White and Mr Sayed on 8 July 2021 is not supported by the telephone records he filed as part of his evidence. 51 Rather, the Applicant’s telephone records support Mr Ahmed’s evidence regarding the timing and order of the telephone calls between the Applicant and Mr Ahmed.
[66] Second, it is nonsensical that Mr Ahmed, the company secretary, would direct the Applicant to speak to Mr Sayed, a fencing/balustrade installer, to confirm whether the Applicant could continue to work for the Respondent
[67] Third, I refer to paragraph [63] above, regarding Mr White’s direction to the Applicant to attend work on 16 July 2021.
Did the Respondent’s failure to allocate work on 5-7 July 2021 constitute a dismissal?
[68] I do not accept the Respondent’s failure to allocate work to the Applicant over the period of 5-7 July 2021 constituted a dismissal. As I have found above, the Applicant was a casual employee and worked varying hours from 11 March 2021.
[69] As is clear from text messages exchanged throughout the period of employment, work was offered or not offered depending upon the operational requirements of the business. 52
[70] I do not consider the Respondent’s failure to allocate work over that period was conduct on the part of the employer intended to bring the employment to an end or had the probable result of bringing the employment to an end.
[71] If there was any uncertainty on the part of the Applicant regarding his employment following him walking off site on 3 July 2021, that was clarified on the 8 July 2021 by Mr Ahmed, and on 15 July 2021 by Mr White who directed the Applicant to attend work on 16 July 2021.
Did the Applicant resign on 5 July 2021?
[72] I do not accept the Applicant’s submission in the alternative that he resigned from his employment on 5 July 2021 due to conduct or a course of conducted engaged in by the Respondent for two reasons. First, there is no evidence that he actually resigned from his employment on 5 July 2021. Second, the Applicant’s evidence that he contacted the Respondent on 8 July 2021 to query why he wasn’t receiving work is inconsistent with him having resigned on 5 July 2021.
Conclusion
[73] For the above reasons, I find that the Applicant was not dismissed within the meaning of s.386 of the Act and is not therefore a person who has been dismissed for the purposes of s.365 of the Act.
[74] Accordingly, the application is dismissed
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR737077>
1 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67].
2 Transcript 29 September 2021 at PN930-931.
3 DHB pages 42, 45.
4 DHB page 42 at [5]-[6].
5 Ibid at [9].
6 Ibid.
7 Ibid.
8 Ibid.
9 Ibid at [10].
10 Ibid at [11].
11 Ibid.
12 Ibid.
13 Ibid.
14 Ibid.
15 Ibid at [12].
16 DHB page 82 at [1].
17 Ibid at [3].
18 Ibid at [7].
19 Ibid at [8].
20 Ibid at [9].
21 DHB page 22 at [7].
22 Ibid.
23 Transcript 28 September 2021 at PN151-PN155.
24 DHB page 79.
25 Ibid; Transcript 29 September 2021 at PN881.
26 DHB page 79 at [5].
27 DHB page 79 at [6].
28 Ibid at [7].
29 Ibid at [8].
30 Ibid [12]-[14].
31 DHB page 78.
32 Ibid.
33 Ibid.
34 DHB page 77 at [1].
35 Ibid at [5].
36 Transcript 28 September 2021 at PN387.
37 DHB page 77 at [6].
38 Ibid at [8].
39 Ibid at [11].
40 Transcript 28 September 2021 at PN381-383.
41 DHB page 81 at [1].
42 Ibid at [3].
43 Ibid at [4]-[7].
44 Ibid at [8]-[10].
45 PR734345
46 Transcript 29 September 2021 at PN747-PN748.
47 Ibid at PN773-PN776.
48 Ibid.
49 [2021] FWC 650.
50 Exhibit R7.
51 DHB page 66.
52 DHB pages 50-52.
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