Jahangir Farzady v Monochromatic Engineering Pty Ltd T/A MCE Lasers

[2015] FWC 3001

[2015] FWC 3001

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jahangir Farzady
v
Monochromatic Engineering Pty Ltd T/A MCE Lasers
(U2015/2882)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Jahangir Farzady alleged the termination of his employment by Monochromatic Engineering Pty Ltd was unfair. In his application he advised that he commenced employment on 21 May 2013 and his employment ended 23 January 2015.

[2] In the employer response Monochromatic stated that Mr Farzady was an irregular and non systematic casual employee from mid 2013 and commenced permanent employment on 5 May 2014. Monochromatic said Mr Farzady resigned his employment and his employment ended at the end of 2014.

[3] An employee is required to have served six months (one year if employed by a small business) employment to be protected from unfair dismissal.

[4] Section 383 of the Fair Work Act 2009 provides as follows:

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.

Was Mr Farzady employed for more than one year?

[5] The parties are in dispute about whether Monochrome is a small business. It is not necessary for me to determine this question if I find that Mr Farzady was employed for more than one year.

[6] Mr Farzady gave evidence that as a casual employee he regularly worked between 44 and 67 hours per week. Mr Zoran Crvenkovic, the Managing Director, accepted that Mr Farzady was not working on a call in basis. Mr Crvenkovic did not dispute the hours worked by Mr Farzady.

[7] In November 2013, Mr Crvenkovic agreed to sponsor Mr Farzady under a section 457 visa. A contract was signed on 13 November 2013 and it provided that employment would commence once a suitable visa was granted. A visa was approved on 23 January 2014. Mr Farzady said he commenced full time employment from 12 November 2013.

[8] Irrespective of the dispute between the parties about when Mr Farzady’s employment ended, I find that he was employed by Monochromatic for more than one year. I find that his period of employment as a casual employee was regular and systematic and he had a reasonable expectation of ongoing employment.

Did Mr Farzady resign his employment or was his employment terminated by Monochromatic?

Mr Farzady’s evidence

[9] Mr Farzady gave evidence that once he was paid in accordance with the contract, he was required to pay Mr Crvenkovic $600 per fortnight because the company could not afford to pay him the minimum guaranteed annual earnings set by the Immigration Department. Mr Farzady gave evidence that he worked hours in addition to the 38 ordinary hours but he was not paid for any additional hours worked. In April 2014, Mr Farzady commenced renting from Mr Crvenkovic a room to live in at the business for which he paid an additional $150 per week.

[10] Mr Crvenkovic denied requiring Mr Farzady pay $600 per fortnight and put to him that this was the amount he paid for rent. Mr Farzady said that he paid $300 a fortnight for the rent in addition to the $600. He said he had kept a record of all payments made.

[11] In October 2014, Mr Farzady raised a number of his concerns with Mr Crvenkovic about his employment. As a result of the non payment for additional hours worked Mr Farzady stopped paying Mr Crvenkovic the $600 per fortnight and stopped working additional hours. Mr Farzady said that this caused additional conflict and as a result he became ill.

[12] Mr Farzady told Mr Crvenkovic that he would need to seek another sponsor but he denied that he resigned his employment. After telling Mr Crvenkovic that he was looking for a sponsor he said Mr Crvenkovic kept asking him when he was going to resign. Mr Farzady said he refused to resign because he needed to be sponsored for immigration purposes.

[13] Mr Farzady was on annual leave from 23 December 2014 until 17 January 2015. It was his evidence that in November 2014 Mr Crvenkovic told him not to come back to work when he returned from holidays and that he would call him if he needed him. As a result Mr Farzady contacted his migration agent who sent Mr Crvenkovic an email which stated that Mr Farzady had reported that Mr Crvenkovic had told him that he would not be working for him full time from January 2015. He asked Mr Crvenkovic to send him a letter advising of any change in his status.

[14] Mr Crvenkovic replied stating that due to a slowdown in work “it has been necessary to reposition some employees from full time to part time or casual, which is what we decided for Jahan. In order for him to be eligible for public holiday entitlements etc it has been suggested that he will change from full-time to part time or casual when the company returns from holiday close down on the 13 January 2015.”

[15] On 23 December 2014, Mr Farzady sent his migration agent an email in which he said he had received a phone call from Mr Crvenkovic who told him that “he is sticking with his decision to only employ me part time and he will contact me if and when he needs me next year.”

[16] On 14 January 2015, Mr Farzady sent Mr Crvenkovic an email in which he said “I am following up on our conversation of 23 December 2014 where you indicated that I was not required to start work on 19 January 2015. If I am not required to work on 19 January 2015 could you please confirm that and provide me with written notification that I can forward to the Department of Immigration.”

[17] Mr Farzady then received an email dated 14 January 2015 but forwarded to him on 22 January 2015 which was in similar terms to that sent to the migration agent on 28 November 2014 but advising that due to a downturn in the business “it has been necessary to reposition some employees from full time to part time or casual and retrench same employees, which is what we decided for Jahan. In order for him to be eligible for public holiday entitlement etc it has been cease his employment at 23 December 2014.”

[18] Mr Farzady provided his last three payslips dated 15 December 2014 and 23 December 2014. Those payslips disclose payment for Mr Farzady’s wages and holiday pay. Those payslips disclose that Mr Farzady accrued leave after 23 December 2014.

Mr Crvenkovic’s evidence

[19] Mr Crvenkovic gave evidence that Mr Farzady verbally resigned his employment in late November/early December 2014. Mr Crvenkovic had another witness to this conversation but this witness, who prepared a statement, was not present at the hearing.

[20] I asked Mr Crvenkovic to explain why the email to the migration agent made no reference to Mr Farzady’s resignation. He said that when Mr Farzady resigned he was told he needed to put this in writing. He decided to keep it simple and put the reason as lack of work.

[21] Mr Crvenkovic said that after Mr Farzady resigned he asked him when he would be finishing up. He said that Mr Farzady told him that he had changed his mind. Mr Crvenkovic told him he couldn’t do that. He said Mr Farzady then said “are you going to sack me” and he said “yes”. He said he spoke to his bookkeeper and they agreed, so that Mr Farzady could be paid the public holidays, that his last day would be 23 December 2014.

Consideration

[22] I prefer Mr Farzady’s evidence in this matter. Mr Crvenkovic’s emails were not consistent with his evidence. Had Mr Farzady resigned he would have replied to the migration agent to that effect. I do not accept that Mr Farzady, by advising Mr Crvenkovic that he would need to find another sponsor, resigned his employment.

[23] It is clear that Mr Farzady was on notice in December 2014 that his employment status would change when he returned from annual leave. He was due to return to work on 19 January 2015 hence his email on 14 January 2015. Mr Crvenkovic did not reply to that email until 22 January 2015 and it was on that date that the termination of Mr Farzady’s employment took effect.

[24] I therefore find that Mr Farzady did not resign his employment and he was dismissed on 22 January 2015. Consequently, the jurisdictional objection to the application is dismissed.

[25] This claim has not yet been referred to conciliation. If the parties do not wish to participate in conciliation then the matter will be referred to arbitration

DEPUTY PRESIDENT

Appearances:

J. Farzady on his own behalf.

Z. Crvenkovic for the Respondent.

Hearing details:

2015.

Melbourne:

29 April.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR566742>